Learn about horrendous crimes and unscrupulous criminals, corrupt politicians and the lawyers who control the legal profession in Australia. Shameful, hideous, and treacherous are just a few words that describe these lawbreakers.

Learn about horrendous crimes, unscrupulous criminals, and corrupt politicians and lawyers who control the legal profession in Australia. Shameful, hideous, and treacherous are just a few words that describe these lawbreakers.

A Brief History – Casualties of Telecom (COT)

Absent Justice - My Story - Alan Smith

My name is Alan Smith; this is my story and that of other business owners who have had significant issues with Telecom, now Telstra. We became known by the acronym COT – Casualties of Telecom.

Until the late 1990s, Telecom was the name of the Australian government’s telephone network and communication carrier. Telecom was privatised at the end of the last century and became Telstra. Under its government auspices, Telecom held a monopoly on communications, but their mismanagement on all levels let the network fall into disrepair and resulted in grossly deficient service to customers who depended on Telecom to run their businesses and provide customer services.

A government-endorsed arbitration process was set up for the business owners to rectify their communication problems and fix the faulty telephone services. However, it turned into an uneven battle between the COT cases and the government backed Telecom which we, the four claimants could not win. Our ongoing telephone and fax problems were compounded as our costs and losses increased because our deficient services were not repaired, nor our concerns directly addressed as they should have been.

Our personal integrity was attacked, business reputations undermined, and crimes were committed against us in order to ruin our livelihoods as Telecom sought to avoid responsibility for their own ineptitude and mismanagement by directing blame onto these small businesses that had been severely disadvantaged and destroyed by the lack of communication services between business owners and potential clients.

We, the COT claimants, lost millions of dollars, our mental health declined, and our livelihoods collapsed in ruins. Yet, those in government - the architects of this injustice, this corruption and who had perpetuated these crimes against ordinary citizens - are still in positions of power today. Our stories are still being covered up and actively buried in bureaucratic red tape.

These are our stories which are of major significance today as the cover up has continued to the present day. The stories reveal how through the development of technology, large organisations have been allowed to disadvantage their clients, cover up corrupt operation practices and mismanagement, as well as avoid any responsibility for their failure to act in the interests of a client base or deliver the services they had promised. It is a story of vast government corruption, injustices, and criminal behaviour worthy of a Sicilian mafia organisation.

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Leading up to this Senate hearing 0n 20 August 1997, in parliament house Canberra, Steven Boswell (sadly now deceased) provided his father, Senator Ron Boswell, a fax he had just received from my lawyers, MICHAEL BRERETON & CO (File 51-G Open Letter File No/51-A to 51-G). Steven reminded his father in the company of several other COT Cases that it was he, his father, who had raised Telstra's unlawful threats made against me because I had assisted the Australian Federal Police with their investigations into Telstra's unauthorised interception of my telecommunications services Refer to questions 1 to 93 Australian Federal Police Investigation File No/1.

Threats made

Absent Justice - My Story - Senator Ron Boswell

Threats Carried Out

Threats were made against me by Telstra arbitration officials because I assisted the Australian Federal Police with their investigations into these phone and fax hacking issues. Refer page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, which reports Senator Ron Boswell asking Telstra’s legal directorate:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false; the senator states:

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” Senate Evidence File No 31

Thus, the threats became a reality. What is so appalling about this withholding of relevant documents is this - no one in the TIO office or government has ever investigated the disastrous impact the withholding of documents had had on my overall submission to the arbitrator. The arbitrator and the government (at the time, Telstra was a government-owned entity) should have initiated an investigation into why an Australian citizen, who had assisted the AFP in their investigations into unlawful interception of telephone conversations, was so severely disadvantaged during a civil arbitration.

This harassment by Telstra and their internal security division continued for years. No one in government or the arbitration process would investigate the devastation these threats, harassment combined with corporate thuggery, had on the lives of the COT Case members.

Steven Boswell (now deceased) was much like his dad passionate

Absent Justice - Senator Ron Boswell

A emontionable Senator Ron Boswell

Four months after Dr Hughes prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telecom/Telstra, an emotional Senator Ron Boswell discussed the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He stated:

“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …

“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP , in a terse advice, recommended against proceeding. …

“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …

“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …

“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1)

Thus, the government was officially informed of the above concerning an arbitration process it endorsed and should have immediately appointed a review of the whole sordid affair. It never did.

Again threat were made against me

Absent Justice - Where was the Justice

These threats were made by the Chair of the Senate

The following exhibit Senate Evidence File No 12 shows I was threatened twice by Senator Alan Eggleston, once on 16 August 2001 and again on 6 December 2004, that if I disclose the contents of the 6 and 9 July 1998 In-Camera Hansard, the Senate will have me charged with contempt of the Senate, even though the release of those documents could well have won sixteen arbitration and mediation appeals as An Injustice to the remaining 16 Australian citizens) shows.

These 6 and 9 July 1998 In-Camera Hansardact (privileged government records), confirm one National Party Senator verbally attacked a very senior Telstra arbitration officer who in May 1995, had previously admitted in writing he had withheld 760 relevant FOI until after the arbitrator had concluded his findings without ever having assessed these relevant late released documents. Documented evidence which would have changed the whole outcome of my arbitration. The following statement to the same Telstra arbitration defence spokesperson, “You are really a disgrace, the whole lot of you,” shows what the Senate thought of this arbitration officer. This Senator then apologised to the chair of the Senate committee after making this adverse statement by making a further dammning statement noting:

“Madam, I withdraw that, but I do say this: this has got a unity ticket going right through this parliament. This has united every person in this parliament – something that no-one else has ever had the ability to do – and Telstra has done it magnificently. They have got the Labor Party, they have got the National Party, they have got the Liberal Party, they have got the Democrats and they have got the Greens – all united in a singular distrust of Telstra. You have achieved a miracle.”

All I wanted to do by releasing the 6 and 9 July 1998 In-Camera Hansardact (privileged government records) is to highlight how discriminative the then John Howard, NLP government was by allowing only five of the twenty-one COT Cases on the Senate Schedule list of unresolved Freedom of Information documents we twenty-one COT Cases were promised we would receive if we signed our arbitration and mediation processes.

Public servants with a self-interest

Absent Justice - Australia

Bureaucrats need to take orders, not take charge. The public service can easily become the de facto government.

Telstra withholding my requested telephone exchange data and refusing to release their exchange logbook effectively stopped me from proving my claims of ongoing telephone problems. I took those unreleased documents issues to the Administrative Appeals Tribunal (AAT - No V2008/1836). The respondents in that AAT hearing were the government communications regulator ACMA, who, when facilitating my arbitration, promised we COT Cases would be provided the documents we needed to support our claims.

On 3 October 2008, the Judge hearing my case, Mr G. D. Friedman, advised me in front of two government lawyers and several witnesses in the court chambers that the government should release those documents as a moral gesture. I have yet to see those documents I specically requested.

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

Chapter 12 - The twelfth remedy pursued show, by 2011 ACMA had still not released my original 1994 promised arbitration documents even John Pinnock Telecommunications Industry Ombudsman officially alerting a Senate Estimates Committee (see Prologue Evidence File No 22-D) on 26 September 1997 that:

"...In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act."

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This website is a work in prgress last edited October 2023.

A click on Absent Justice Book 2 is free, it tells the COT story from the very beginning. If you want to donate an appreciation to the book please send it directly to Transparency International.

Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. Instead of our very deficient telephone services being fixed, as part of our government-endorsed arbitration process that was set up by the government to fix the problems, it turned into an uneven battle the COT Cases could never win, our ongoing telephone and faxing problems were NOT fixed as part of the process, regardless of the hundreds of thousands of dollars, it cost us, claimants, to mount our claims against Telstra. Crimes were committed against us and our integrity was attacked and undermined.

Government public servants and lawyers involved in the COT arbitrations have long been saying that some COT Cases will not just walk away. These people are not saying publically that ninety per cent of those who will not move on are their businesses were their livelihoods, and in many cases like mine, my residence was part of the holiday camp.

What money was left after my arbitration battle with Telstra and the ‘so-called award’ paid by the arbitrator, which was less than twelve per cent of what my forensic accountant stated I had lost due to my ongoing phone problems, I had to mortgage my business again. An employed caretaker and his wife, who helped reclad my four second-hand wooden buildings over their three-year period, were told by their friends and fellow churchgoers that they could never make contact by phone.

This letter and many similar letters were written by people after my arbitration over a six-year period, which I then forwarded to John Pinnock, the Telecommunication Industry Ombudsman (TIO) and several members of the TIO board and Council as late as December 2002, who declined to investigate stating that my 1994 arbitration process addressed my onging phone problems.

Similar letters were again written to me and received from the TIO, TIO Board and TIO Council saying that my arbitration was over and the arbitrator was in your favour. Frustration set in because the TIO would not investigate why my arbitration telephone faults had continued to beset my partner Cathy and I, sold our beloved holiday camp for land value only in December 2001

By January 2002, through to 2008, the new owners started writing to the same people with minimal results. Chapter 4 The New Owners Tell Their Story.

In August 2009, the new owners, Darren and Jenny Lewis, were walked off the property as bankrupts.

Absent Justice - My Story - Alan Smith

Two editors viewing my story over several years have had sleepless nights throughout the editing. Both have refused to accept a payment since 2018, as I continue with my website and my updated book. They want to be around when those covering up what is undoubtedly criminal conduct are brought to account for their ill-doings.

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Lawyers and government ministers

Absent Justice - My Story - Alan Smith

Four professional people all prepared to mislead and deceive

The central part of this story is about four professional people: three were lawyers, and one was also an ex-government minister turned ombudsman before returning to being a minister in the John Howard Government in March 1996.

Two are still lawyers today, while the minister resigned from the government and is now a successful businessman. The fourth, who acted as a financial accountant during the government-endorsed arbitrations, later became a qualified, graded arbitrator with an arbitration centre in Melbourne, Australia, and Hong Kong.

All four have one thing in common: they were all involved in administering the Casualties of Telstra arbitrations, which the Australian government had endorsed. All four were partly involved in concealing several crimes the Telstra corporation committed before or during the COT arbitrations.

Three of these professionals were involved in covertly agreeing to use Telstra’s drafted arbitration agreement instead of an independently drafted agreement that the government thought they were endorsing.

Things got even worse when these four began to understand they should not have had secret arbitration meetings with the defendants without the claimants being present, set up a situation where Telstra used a private pre-arbitration forum as well as a covert agreement that allowed the Telecommunications Industry Ombudsman (TIO)-appointed consultants to have first access to relevant arbitration documents before the arbitrator and claimants viewed them (exhibit 590 File AS-CAV Exhibits 589 to 647), effectively allowed Telstra to control the arbitrations and not the arbitrator.

When the second-appointed TIO officially advised a Senate Estimates Committee (Prologue Evidence File No 22-D) on 26 September 1997 that the arbitrator had no control over the arbitration process, that admission came too late for most of the COT Cases whom this arbitrator had already arbitrated on.

Who was behind this misleading and deceptive conduct?

Clauses 25 and 26 was covrtly removed

Alterations were covertly administered to the arbitration agreement after the COT Cases’ lawyers endorsed it.

To have exposed the removing and altering clauses 25 and 26 before the arbitrations commenced would have implicated these four individuals in what they had allowed. The fact that the three legal personnel had sanctioned using Telstra’s drafted arbitration agreement, as well as removing the $250,000.00 liability clauses in the arbitration agreement Chapter 5 Fraudulent conduct and in making so disadvantaged the COT Cases’ claims and any chance they had of successfully appealing the process should have been investigated in 1995 when this conduct was exposed.

These three people knowingly participated in a tainted arbitration process before it got off the ground.

All the evidence of what took place, and more, as well as the names of the people involved in this terrible, unjust process, can be downloaded from this website, absentjustice.com, as my story unfolds from the chapters in the menu bar above.

Even worse, when the arbitrator became aware that the Telstra-drafted arbitration agreement used in my arbitration was not a credible document to have been used, it was used anyway, to my detriment, as the exhibits on this website show.

How do you publish a true account of what really has happened during various Australian Government endorsed Arbitration's without attaching the exhibits to support those facts as we have been literally forced to do because the corruption within the government bureaucracy is so rife? How does the author prove that government public servants fed privileged information to the then, Australian Government owned telecommunications carrier (the defendants) but also concealed the same documentation from the claimants i.e. their fellow Australian citizens?

How do you tell a story that is so unbelievable that even the author has doubts to the authenticity of what they are writing until they check their records before continuing on with the story being written? How do you expose collusion between an arbitrator, various appointed government watch dogs (umpire) and the defendants? How do you expose the fact that the defendants in an arbitration process (the once Government owned telecommunications carrier) used equipment connected to their network, screened faxed material leaving your office, stored it, without your knowledge or consent, before redirecting it onto to its intended destination?

The defendants (the Telstra Corporation) were surely using this screened material to benefit their arbitration defence to the detriment of the claimants.

A secondary fax machine

illegal phone/fax interception

My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B) to Telstra’s corporate secretary, show I was concerned that my faxes were being illegally intercepted.

An internal government memo, dated 25 February 1994, confirms that the minister advised me that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See Hacking-Julian Assange File No/28)

This internal, dated 25 February 1994, is a Government Memo confirming that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (AFP Evidence File No 4)

The fax imprint across each of the documents and letters provided to two well recognised technical telecommunication specialists both made sworn statements that the fax imprint described in their Scandrett & Associates report (see Open Letter File No/12 and File No/13) were all captured by a secondary fax machine (intercepted) during their arbitrations.

This gave a considerable benefit to the defendant because, of course, that gave them time to decide which aspect of the claim would be easy to defend and which would be best to avoid completely. Try to imagine what that would have felt like for the claimants. It would be best if you also remembered, as we record elsewhere on absentjustice.com, that some of those documents, which we sent off through what should have been a secure fax and postal system, never arrived at their intended destination.

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Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. Instead of our very deficient telephone services being fixed, as part of our government-endorsed arbitration process that was set up by the government to fix the problems, it turned into an uneven battle the COT Cases could never win, our ongoing telephone and faxing problems were NOT fixed as part of the process, regardless of the hundreds of thousands of dollars, it cost us, claimants, to mount our claims against Telstra. Crimes were committed against us and our integrity was attacked and undermined.

In my case, threats were also made against me by Telstra. My integrity was attacked, and my claims were branded frivolous before my first settlement with Telstra on 11 December 1992 (Refer to AUSTEL’s Adverse Findings, at Point 2 to 212); after that settlement, when threats were again made against me between 10 September 1993 (refer to Prologue Evidence File 1-A to 1-C) and the start of my government-endorsed arbitration process on 21 April 1994 (Refer to Australian Federal Police Investigation File No/1 as well as through to my Department of Communication, Information Technology and the Arts (DCITA) government assessment process orchestrated by Senators Helen Coonan and Barnaby Joyce in March 2006 (Refer to Chapter 8 - The eighth remedy pursued).

A click on Absent Justice Book 2 is free; it has taken me a considerable amount of time, as you will observe. It was paramount that all 1,700 plus exhibits which prove my statements made in this unbelievable story had to be doubled checked for clarity. If you would like to donate an appreciation to my story, please send it directly to Transparency International Australia.

Absent Justice - Crimes Against the COT claimants

When looking for a single numbered exhibit discussed either on this website or Absent Justice Book 2 some of those exhibits can also be located from the files below Example 1: i.e. AS 942 go to AS-CAV 923 to 946.

Example 2: i.e. AS 33 go to AS-CAV Exhibit 1 to 47.

I have raised here four letters, one dated 17 August 2017, 6 October 2017, 9 October 2017 and 10 October 2017, from COT Case Anne Garms, just before her death, to The Hon Malcolm Turnbull MP, Prime Minister of Australia and Senator the Hon Mathias Cormann (see See File Ann Garms 104 Document) where she exposes not only the raping of first nation (aboriginal children) by Senator Collins in his parliament house Canberra office.

We COT Cases were later advised that another possible reason we were not getting our requested FOI documents from Senator Bon Collins's office is that his minders did not want to release any government information to the COT Cases while the Senator was under investigation (rb.gy/dsvidd). This, of course, further compounded the document issues surrounding our arbitrations.

Ann also discloses in her 6 October 2017 letter is which is a single letter marked Doc B, to the Hon Malcolm Turnbull MP, Prime Minister of Australia, raises the same pages in Frank Blount's book https://www.qbd.com.au › managing-in-australia › fran admits Telstra did have major problems in their network.

Had the arbitrator and administrator to the COT arbitrations been aware that Frank Blount would be making public statements about how deficient the network was less than two years after Telstra had sworn under oath in some thirty or more statutory declarations that Telstra's network was of world standard when pages 116, 132, 133, 136, and 137 in https://www.qbd.com.au › managing-in-australia › fran: the COT Cases would have been awarded a far greater compensation payout than they did.

It was also essential to raise Ann Garms's letter here because Wayne Goss (Chair of Deloitte), referred to by Ann, had also been Premier of Queensland, and therefore, when Ann said he told her that during our arbitrations, Gaslighting methods were used against us fits in with the Gaslighting character assassination used against me in 1996, to stop Laurie James, the President of the Institute of Arbitrators Australia from investigating my claims concerning the unethical way in which the four COT arbitrations had been conducted.

This is the same type of unethical conduct that three young hackers (later identified as Julian Assange) warned Graham Schorer, COT spokesperson, about very early in our arbitrations.

Julian Assange - Hacking

If the hackers that telephoned Graham Schorer, COT spokesperson, in April 1994, were Julian Assange and his friends, then they provided a very important link for the COT cases, but we did not know this during our arbitrations. No one in government, including two Attorney Generals, denied these three hackers were Julian Assange and his mates. My two letters to those Attorney Generals in 2010 and 2011, detailing what the hackers stated concerning Telstra’s unlawful conduct, brought no response at all, despite attaching irrefutable evidence (see Open Letter File No/12 and File No/13) showing the COT cases’ arbitration-related documents faxed to the arbitrator and our arbitration advisors were regularly screened by Telstra and, in my own case, 43 faxes that Telstra charged me for never arrived at the intended destination.

The electronic surveillance (Open Letter File No/12 and File No/13) is what the hackers (see below) discussed with Graham Schorer COT spokesperson when they contacted him very early in our arbitration process.

Click on the following Julian Assange caption below and learn more about the COT story

Absent Justice - Unresolved Privacy Issues

If it was Julian Assange who contacted Graham Schorer, COT spokesperson (See Hacking – Julian Assange File No/3), how did he know during the COT v Telstra government-endorsed arbitration where the Australian Federal Police were carrying out their own investigations as the arbitrator had been doing concerning Telstra's unauthorised interception of the COT Cases telecommunications service lines for the first twelve months of those arbitrations that the COT Cases were under electronic surveillance?

What had the hackers seen to have been able to make those statements to Mr Schorer?

Graham Schorer prepared a statutory declaration on 7 July 2011 to provide to the Victorian Attorney-General the Hon Robert Clark. This statutory declaration discusses the hackers who phoned Graham to warn him. The hackers discovered Telstra and others associated with our arbitrations were acting unlawfully towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his Melbourne and Sydney offices

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.” (See Hacking – Julian Assange File No/3)

On the covering page of a joint 10-page letter dated 11 July 2011 to the Hon Robert McClelland, federal attorney-general and the Hon Robert Clark, Victorian attorney-general, I note:

“In 1994 three young computer hackers telephoned Graham Schorer, the official Spokesperson for the Casualties of Telstra (COT) in relation to their Telstra arbitrations.

Was Jullian Assange one of these hackers?
The hackers believed they had found evidence that Telstra was acting illegally.
In other words, we were fools not to have accepted this arbitration file when it was offered to us by the hackers who conveyed to Graham Schorer a sense of the enormity of the deception and misconduct undertaken by Telstra against the COT Cases.” (AS-CAV Exhibit 790 to 818 Exhibit 817)

I also wrote to Hon. Robert Clark on 20 June 2012 to remind him that his office was already in receipt of the 7 July 2011 statutory declaration from Graham Schorer. I also approached other government authorities and provided the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which leaves no doubt that the hackers were absolutely correct concerning this electronic surveillance.

If the hackers included Julian Assange, then he carried out a duty to expose what he thought was a crime. Major law enforcement agencies and the media have been asking the Australian public to disclose incidents which they believe are crimes, because doing so is in the public interest. When I exposed similar crimes to the Australian Federal Police – Australian Federal Police Investigation File No/1 – I was penalised for it and Telstra carried out its threats.

On page 15 of a publication titled The Most Dangerous Man In The World, written in 2011 by the ABC TV Four Corners journalist Andrew Fowler, Mr Fowler notes that Julian Assange was one of those who hacked into Telstra's Lonsdale Street Telephone Exchange computer system in the centre of Melbourne. This is the same Lonsdale telephone exchange which had caused so many problems for my business, as reported in the government's report titled AUSTEL’s Adverse Findings, which notes at Point 209 –

“Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”

Page 21 in the 26 November 1996 Telstra Arbitration Briefing Document for Graham Schorer (COT spokespersn) also refers to problems at the Lonsdale Street Telephone Exchange, noting that the problems affected the service lines of Graham's courier business. So what did Julian Assange and his friends find at the Lonsdale Street Telephone Exchange that prompted them to telephone Graham Schorer?

My statement to Mr Pinnock, Telecommunications Industry Ombudsman (the second appointed administrator to my arbitration) in my 20 October 1995 letter that: "This phrase has now come home to roost" (refer to exhibit 537 - GS-CAV 522 to 580) was my way of saying that I believed that the advice Graham Schorer received from these hackers – that Telstra and others associated with the COT arbitrations were acting unlawfully towards the COT Cases – was the truth.

If only the arbitration professionals had listened

Absent Justice - Julian Assagne

What made a boy want to disclose what he exposed

Why didn't the four Arbitration professionals (see below) involved in both Graham's Schorer's and my arbitration investigate our claims in April 1994 that these Hackers had uncovered our legal rights under the government-endorsed arbitration process were being violated by the government-owned Telstra corporation?

Julian Assange was a boy when he telephoned Graham Schorer. What made a boy want to disclose what he exposed four years before six Australian Senators uncovered the same evidence as reported below?

Sadly for Julian Assange, his family and freedom of speech (which the world is crying out for), he has paid a far higher price (and still is) than I have paid for assisting the Australian Federal Police during their investigation into Telstra’s corrupt practices while in litigation with Australian citizens.

ABSENT JUSTICE - ARBITRATION

I am not John Grisham spinning a story here

_{Don't forget to place your mouse/cursor over the following images below and press}

Absent Justice - The Firm

Four small business operators were targeted so they could not wholly prove their claims

Page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page. Prologue Evidence File 1-A to 1-C

What I did not know, when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults is that this "COT Case Strategy" was a set up by Telstra and their lawyers to hide all proof that I truly did have ongoing telephone problems affecting the viability of my business.

This continual writing up of individual telephone faults, to these lawyers Freehill Hollingdale & Page, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this fault evidence, I was providing it to Telstra believing this would assist them in locating the problems my business was experiencing.

I was unaware I would later need this evidence for an arbitration process. This arbitration process meant I had to retrieve back, from Telstra under Freedom of Information, the very same documentation I had previously provided this legal firm. Imagine the frustration of knowing that you had already provided the evidence supporting your case but it was now being withheld from you by Telstra and their lawyers.

If this wasn’t soul-destroying enough, imagine learning that lawyer, with who you were being forced to register your phone complaints, devised a legal paper titled “COT Case Strategy”, instructing their client Telstra (naming me and my business) on how Telstra could conceal this same type of technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. SENATE official Hansard – Parliament of Australia.

A secondary fax machine

Absent Justice - Lost Faxes

illegal phone/fax interception

My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B) to Telstra’s corporate secretary, show I was concerned that my faxes were being illegally intercepted.

An internal government memo, dated 25 February 1994, confirms that the minister advised me that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See Hacking-Julian Assange File No/28)

The fax imprint across each of the documents and letters provided to two well recognised technical telecommunication specialists both made sworn statements that the fax imprint described in their Scandrett & Associates report (see Open Letter File No/12 and File No/13) were all captured by a secondary fax machine (intercepted) during their arbitrations.

This gave a considerable benefit to the defendant because, of course, that gave them time to decide which aspect of the claim would be easy to defend and which would be best to avoid completely. Try to imagine what that would have felt like for the claimants. It would be best if you also remembered, as we record elsewhere on absentjustice.com, that some of those documents, which we sent off through what should have been a secure fax and postal system, never arrived at their intended destination.

Questions upon questions that have never been answered by the arbitrator

Absent Justice - My Story

Gross negligence

Had the arbitrator allowed me to resubmit the faxes that I could prove were not assessed by his technical consultants, who have stated in their report at point 2.23 to point 3 that they only evaluated 23 of my registered 200 plus fault complaints (refer to Exhibit 45-c - File No/45-A, @ Chapter 1 - The collusion continues my life would have been complete. This simple task was denied to me twenty-eight years ago.

What was the point of allowing me to spend $ 300,000.00 in arbitration fees if only 23 of my registered phone complaints, i.e. out of 200, were assessed? No wonder the arbitrator made no ruling (no written finding) that my phone problems were still ongoing when he brought down his award.

The fact that some of my lost faxed arbitration claim documents were related to the carelessness of his Sydney office has never been investigated (see below).

Absent Justice - My Story Questions about who knew what documents were redirected from the arbitrator's Melbourne office to his Sydney office by the automated facsimile service when the Melbourne office closed each day have never been answered.

Questions regarding what previously faxed Melbourne arbitration information stayed in the arbitrator's Sydney office after it was received were not redirected back to Melbourne for assessment by the arbitrator.

According to this letter dated 30 July 2009, from Graham Schorer (COT spokesperson) and ex-client of the arbitrator Dr Hughes (see Chapter 3 - Conflict of Interest) wrote to Paul Crowley CEO Institute of Arbitrators Mediators Australia (IAMA), attaching a statutory declaration (see ”Burying The Evidence File 13-H and a copy of a previous letter dated 4 August 1998 from Mr Schorer to me, detailing a phone conversation Mr Schorer had with the arbitrator early in 1994 regarding lost Telstra COT related faxes. During that conversation, the arbitrator explained, in some detail that:

“Hunt & Hunt Australian Head Office of was located in Sydney and is a member of an international association of law firms. Due to overseas time zone differences, at close of business, Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.”Burying The Evidence File 13-H.

The fact that Dr Hughes did not official diclose these faxing problems between his Sydney and Melbourne office prior to is hinging on criminal negligence.

Further example: It is also clear from Front Page Part One File No/1, at least six that six documents faxed from my office to the arbitrators office did not reach their intended destination even thought Telstra charged me for those six faxes!

Simply put, the arbitrator was hampered by this terrible situation that still needs investigation. The arbitrator only made a finding on the documents he saw, not those stolen en route to his office via Telstra's telecommunications network. How can the government continue saying justice was received when the arbitrator did not make a single finding in his award that my phone and faxing problems were still ongoing? How could he when Telstra did not release them until October 1998, thirty-nine months after the conclusion of my arbitration?

Even worse for Dr. Gordon Hughes (the arbitrator) is that while the COT Cases arbitration faxes to his office were being faxed through to his Sydney office each night after his office closed for the night, Dr Hughes' office had several Telstra clients at that same time when COT Telstra Melbourne related arbitration faxes were arriving in the same fax trays in the Sydney office. Those Telstra faxes may well have been mistakenly thought to be Sydent Telstra-related documents, especially when the Australian Federal Police (AFP) were investigating both Sydney Telstra employees for rorting millions upon millions of dollars in false travel and accommodation fees (see SENATE official Hansard – Parliament of Australia), and in the AFP in Melbourne were investigating Telstra employees for unauthorised fax and phone interception issues.

Why have these lost arbitration faxed claim documents never been transparently investigated where all parties must explain their positions? What have the arbitrator, Dr. Gordon Hughes and the administrators of the COT arbitrations got to lose by investigating why Dr. Hughes never raised these lost fax issues concerning his office might have contributed to some of these losses? On pages 5163 to 5169, this SENATE official Hansard – Parliament of Australia, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders, i.e., the government and Australian citizens, who then owned Telstra.

Threats made during my arbitration

Absent Justice - My Story - Senator Ron Boswell

Threats carried out during my arbitration

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false; the senator states:

Thus, the threats became a reality. What is so appalling about this withholding of relevant documents is this - no one in the TIO office or government has ever investigated the disastrous impact the withholding of documents had had on my overall submission to the arbitrator. The arbitrator and the government (at the time, Telstra was a government-owned entity) should have initiated an investigation into why an Australian citizen, who had assisted the AFP in their investigations into unlawful practices be subjected to such appalling conduct by Telstra Corporation.

ACMA Australian Government

A free for all at the cost of democracy

From April 1994 to October 2008, after the Australian government refused to investigate my claims that their public servants and the Telstra corporation withheld vital evidence from me during my arbitration in 1994 and 1995, which would have supported my arbitration claims of ongoing telephone problems not addressed in my government-endorsed arbitration. I took these claims to the Administrative Appeals Tribunal (AAT - No V2008/1836). The respondents in that AAT hearing were the government communications regulator ACMA, who had access to my previously withheld Telstra documents.

On 3 October 2008, after having submitted approximately ninety-per-cent of the documents that can now be downloaded from this website, the other ten per cent are dated after 3 October 2008, the Judge hearing my case, Mr G. D. Friedman, advised me in front of two government lawyers, and those in the court chambers:

Even though the judge hearing my case, Mr. G.D. Friedman, advised ACMA at this 2008 hearing, he found my request for documents valid. ACMA only provided me with a portion of those requested documents, which I was initially promised during my 1994/95 arbitration would be provided if I entered into my government-endorsed settlement/arbitration process. By 2010, I had yet to receive those documents via the AAT process from ACMA. I again took the government (ACMA) to task at a considerable cost (Refer to Chapter 12 - The twelfth remedy pursued).

After my May 2011 AAT / ACMA hearing (No 2010/4634), I had only received a portion of my requested Freedom of Information documents, which I originally needed to support my 1994 to 1995 Settlement/Arbitration process. This denial by ACMA to release these original requested document was made regardless of John Pinnock Telecommunications Industry Ombudsman (who was also the administrator to the COT arbitrations) officially alerting a Senate Estimates Committee (see Prologue Evidence File No 22-D) on 26 September 1997 that:

"Firstly, and perhaps most significantly, the arbitrator had no control over that process because it was a process conducted entirely outside of the ambit of the arbitration procedures".

I also reminded ACMA in both the 2008 and 2011 Administrative Appeals Tribunal hearing that several Senators confirmed we COT Cases should have received our 1994 requested arbitration documents before and during our arbitrations; and I quote:

Infringe upon the civil liberties

Most Disturbing And Unacceptable

On 27 January 1999, after having also read my first attempt at writing my manuscript absentjustice.com, the same manuscript I provided Helen Handbury, sister to Rupert Murdoch, (see Rupert Murdoch - Hacked Documents) Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.”

Absent Justice - Senator Kim Carr

Senator Kim Carr criticised the handling of the COT arbitrations on 11 March 1999, as the following Hansard link shows. Addressing the government’s lack of power, he said:

“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”

And when addressing Telstra’s conduct, he stated:

“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.” (parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Absent Justice - My Story - Parliament House Canberra

Senator Schacht was possibly very vocal when he stated:

“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues

on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long.

The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”

Absent Justice - My Story Senator Alan Eggleston

They have defied the Senate working party.

On 23 March 1999, after most of the COT arbitrations had been finalized and business lives ruined due to the hundreds of thousands of dollars in legal fees to fight Telstra and a very crooked arbitrator, the Australian Financial. Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:

“A Senate working party delivered a damning report into the COT dispute. The report focused on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They have defied the Senate working party. Their conduct is to act as a law unto themselves.”

The following six senators all formally record how those six senators believed that Telstra had ‘acted as a law unto themselves’ throughout all of the COT arbitrations, is incredible. The LNP government knew that not only should the litmus-test cases receive their requested documents but so should the other 16 Australian citizens who had been in the same government-endorsed arbitration process (Refer to An Injustice to the remaining 16 Australian citizens).

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard)

Other government ministers have shown their disgust at the way Telstra was able to act as a law unto themselves as can be seen from Senator Mark Bishop's statement shown below notes in the following link > aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

Absent Justice - Senator Mark Bishop

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra's costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee's view Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million - Senator Boswell - Some $24 million.

Senator Mark Bishop -

"I am informed by Senator Boswell it is 24 million - defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous propostion and a waste of public money".

A fair resolution of all the COT cases claims has still not been reached as the following An injustice to the remaining 16 Australian citizens shows.

Absent Justice - Senator Len Harris One Nation

On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled 16 Australian citizens were so badly discriminated against, by the then-coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.

At a press conference on the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?” Senate Evidence File No 56

Also during this same press conference Senator Len Harris asked many other questions including why should an owner of a business such as the holiday camp at Cape Bridgewater literally be forced to sell that business because Telstra had still been unable to fix the ongoing telephone problems that Senator Richard Alston himself had investigated in 1992, ten years previous and concluded were affecting Mr Smith's holiday camp. The same telephone problems which Mr Smith raised in his 1993/94 arbitration and was still raising with Telstra in 2001, seven years after the arbitration process had failed to rectify those problems.

My beloved holiday camp

Absent Justice - Cape Bridgewater Holiday Camp and Residence

Nine years after my arbitration the ongoing phone problems ruined the lives of the new owners

Chapter 4 The New Owners Tell Their Story

On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra discusses the ongoing telephone problems being experienced by the new owners of my business noting:

“Mr & Mrs Lewis claim in their correspondence attached:

That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.

That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” Burying The Evidence File 10-A

Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician, Tony Watson, was now refusing to help Mr Lewis with, nine years later?

The begining of this story COT can be accessed by clicking on Corruption in Arbitration 2

The memory of this terrible saga will not go away

Absent Justice - 12 Remedies Persued - 6

Read about our dealings with:

Spying during the COT arbitration by Telstra was tolerated by those who administered the COT arbitrations. Proof that electronic surveillance equipment connected to the COT Cases business and residence facsimile service lines to gain an illegal advantage over litigants during court proceedings and private negotiations were never transparently investigating Chapter 4 Government spying/Scandrett & Associates facsimile interception report, Open Letter File No/12 and File No/13.
Unaddressed threats carried out by the Telstra Corporation against the COT Cases during their arbitrations. See Senate Evidence File No 31
Withholding important discovery documents in an arbitration procedure: Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?
Tampering with evidence in the arbitration: Tampering With Evidence.
Relying on defence documents that are known to be flawed: Telstra’s Falsified BCI Report);
AUSTEL (for the government) concealed vital evidence from the arbitration process that would have won my case: AUSTEL’s Adverse Findings at points 2 to 212.
Those administering the arbitrations allowed vital evidence not to be excluded in at least two reports which minimized Telstra's liability to the claimant: Refer to Chapter 1 - The collusion continues and Chapter 2 - Inaccurate and Incomplete
Fraud allegations against Telstra during the COT arbitrations were registered with the Major Fraud Group Victoria Police by Barrister Sue Owens, only to be squashed under pressure by the Australian government (see Chapter 2 - Julian Assange - Hacking - we did not listen and transcripts Major Fraud Group Transcript (2)

Warts and All.

INTRODUCTION 1

CHAPTER 1

Have you ever had reason to complain about your phone bill?

Have you ever discovered that, even though you know you were right beside the phone at a particular time, your friend insisted he had rung and you had not answered?

Has anyone ever mentioned in passing that they are amazed at how much time you spend on the phone when you know your phone hasn’t rung for days (and you have hardly made any outgoing calls)?

Have prospective clients abused you for being unprofessional and not answering your phone for days when the phone hasn’t even rung once for the last week?

If you have ever experienced only one of these situations then you will understand why I sometimes feel I have lived through a nightmare — I experienced all these problems, and more, for almost twenty years. Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater, in rural Australia. It wasn’t until much later that I discovered that the business was connected to an antiquated phone exchange which had been installed more than 30 years before and which was designed specifically for what the Australian telecommunications carrier (Telstra) designated as ‘low-call-rate areas’. This ancient telephone exchange was certainly never intended to handle the amount of calls that were already being made by residents and holidaymakers in late 1987 when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

Back when I started to operate my business in February 1988, when I commenced my arbitration in April 1994, and beyond to the late 1990s, doing business via the internet and email was not an option. The way of doing business was starting to come into its own. Had we COT Cases been operating our companies during the period where emails and online advice was so readily available, then the phone and faxing problems we suffered would not have affected our business losses as they did. We did not get an efficient mobile phone system into Cape Bridgewater until 2004.

This story could easily be your story: I know, because this nightmare was my nightmare and is still my night may twenty-years after I sold the business in December 2001.

Back in December 1987, when I first fell in love with the small accommodation centre perched high on a hill above a picturesque bay on the south coast of Victoria, Australia, I knew this was a business I could run successfully.

My working life began in 1960 when, at age 15, I went to sea as a steward on English passenger/cargo ships. In 1963 I jumped ship and started work in Melbourne as an assistant chef, moving from one elite hotel to another; Hotel London, Australia Hotel, Menzies.

Two years later, now aged 20, I joined the Australian Merchant Navy, starting out on the Princess of Tasmania and, by 1975, I had put in time as a chef on many Australian and overseas cargo ships. Time learning to manage hotels, motels and restaurants around Victoria followed.

By 1979, married to Faye and with two children, I was working freelance, both in the catering industry and on Melbourne tug boats, while I studied for a Hotel/Motel Management Diploma. I had already taken on a Hotel/Motel and pulled it out of receivership so that the owners could sell it, once it was running successfully again.

By 1987, at age 44, I had enough experience behind me to know that I had the skills, the expertise and the knowledge to take a simple school camp and turn it into a successful venue for social clubs and family groups as well as schools. Unfortunately, what my wife and I did not know about and could therefore not be prepared for, were the ensuing problems that would arise because of the ‘elderly’ phone system in the area. This local, unmanned phone exchange had only 8 lines but, even back then, in 1987, it was being used by 60 other resident families (120 individuals), as well as the school camp. This meant that if 4 of the local residents were on the phone at the same time then there were only 4 other lines left for calls to come in to the remaining 116 people, and my business, which was connected to this out-dated telephone exchange for the first 3½ years after I moved in: 3½ crucial years in which I had expected to establish the business on a firm ground.

In February 1988, before we moved in, and in preparation for the planned expansion of the camp, I had some 2,000 glossy, coloured brochures printed and distributed. We expected the phone to ring off the hook with inquiries. Well, to be a bit more conservative, anyone could expect at least a 1% inquiry rate as a result of this sort of direct marketing, coupled with the personal visits I made to almost 150 schools and shires to extol the virtues of the camp.

By April of 1988 Faye and I were becoming seriously concerned about the telephone system. Some people were beginning to ask accusingly why we never answered our phone and others were suggesting that we should have an answering machine installed to take calls when we were away from the office. Even after we installed a new answering machine, the same complaints continued, coupled now with complaints about incredibly long periods when the phone was apparently engaged. We both knew very well that the phone had not been engaged for long spaces of time and often the phone didn’t ring at all for days on end. These complaints continued for years and the business floundered as a result.

Later, long after our first complaint to Telstra, we discovered that the previous owner of the business had been complaining, unsuccessfully, about these same phone faults long before we purchased the camp. This was clearly proved by a document I received once I began requesting information under Australia’s Freedom of Information Act (FOI - refer Glossary) which, for a small fee, allows any citizen to request copies of documents pertaining to themselves or their business, from any Government department or instrumentality. Over the ensuing years I accumulated literally thousands and thousands of FOI documents. The document which alerted me to the previous owner’s troubles was headed “Telstra Confidential: Difficult Network Faults — PCM Multiplex Report; 31/1/94”, with a sub-heading “5.5 Portland — Cape Bridgewater Holiday Camp”.

According to this document, Telstra was aware of the phone faults as far back as 1987, before we moved to Cape Bridgewater and before I lodged my first complaint which appears in Telstra’s archives on 26 April 1988.

When Faye and I looked at this business however, we were unaware of the existing phone problems and so we went ahead with the sale of our home in Melbourne and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.

Understandably, Faye became increasingly frustrated with the complaints we were receiving about the phone system. We began to doubt ourselves. Were we talking too long on the phone? Were we not hearing the phone ring? Had we forgotten to switch on the answering machine?

Call ‘drop-outs’ occurred frequently — the line just went dead. Mostly, if we had a contact number, we had to ring the caller back but sometimes people rang us back. If the caller had not yet given us contact information, and didn’t ring back, we lost that contact.

This new venture was not turning out to be quite as much fun as we had anticipated.

The real extent of the phone problem however, didn’t actually hit us until well into the Christmas period of 1988 when we put on a Christmas dinner for the locals in Cape Bridgewater. During this dinner I mentioned the phone problems we were struggling with. Harry, our next-door-neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Fred Fairthorn, once the owner of ‘Tom the Cheap Grocery’ chain, concurred. His comment was “After all, what can you expect from Telstra when we’re in the bush?” Fred had suffered from similar problems over many years and later happily supplied a written statement to that effect.

As we rolled into the dawn of 1989 we were becoming more and more aware of what was to become our great nightmare. The failing phone system became the straw that broke the camel’s back of our 20-year marriage. I was beginning to run the business from a position of continual anger. Certainly I couldn’t blame anyone but myself when the gas bottles ran out in the middle of serving a meal for guests; some of the few who had managed to get through on the phone and make a booking.

My advertising campaign didn’t work: I began to feel I hadn’t properly researched the pros and cons before moving to Cape Bridgewater. I was beginning to ask myself what I had done when I asked Faye to leave her friends in Melbourne, to agree to selling the family home just so I could satisfy my blind ambition to run my own business. And so, as bookings dwindled instead of increasing as we had expected, our negativity grew in proportion.

We went touring to South Australia, selling the concept of our camp through the Wimmera area and to numerous schools. Nothing seemed to work as it should have; sure there were occasional inquiries, but they were far from frequent.

The closest local township to the Cape Bridgewater camp was Portland, 20 kms away. While there on a shopping expedition one day I realised I had left the meat order list behind. I phoned Faye only to get a Telstra recorded message telling me that the number was not connected! I phoned again. Same message.

Telstra’s fault centre said they would look into the matter and so I went about the rest of the shopping, leaving the meat order to the last. Finally I phoned the camp again; this time the phone was engaged. I decided to buy what I could remember from the meat order list and hope for the best.

Faye was not happy when I returned. The phone had not rung once while I had been away, she said, and how come I left the meat order behind anyway? She thought I was supposed to be such an efficient catering manager. My poor wife’s frustration was aimed straight at me, she didn’t stop to wonder why I couldn’t ring her from Portland.

According to a Telstra FOI document, between 19th April 1988 and 10th January 1989 I phoned from the camp to complain about the phone service on nine separate occasions. Add to this the letters of complaint that I wrote, plus my complaint from Portland when the recorded message told me my own phone had been disconnected, and a picture begins to emerge.

CHAPTER 2

Anyone who uses a telephone has at some time reached a recorded voice announcing “The number you are calling is disconnected” or something similar. Within the telecommunications industry these messages are referred to as RVAs or Recorded Voice Announcements (refer Glossary). Among the multitude of FOI documents that I received in 1994 was a copy of a Telstra internal e-mail dated 26/9/93, which refers to the need to “have a very basic review of all our RVA messages and how they are applied.” This e-mail goes on to say “... I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line.” Obviously Telstra were aware of RVA problems long before I experienced them.

Another internal Telstra document notes “As a result of the investigations into difficult customer complaints and associated reports it has become apparent that the present RVA for incorrect numbers requires revision” . This memo refers in particular to the message “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” This confirms Telstra’s acknowledgement that serious faults existed, particularly since the author of this memo goes on to say ”....this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.”

For a newly established business like ours, this was a major disaster but Telstra didn’t want to know, and certainly were not prepared to do anything about the situation Faye and I found ourselves in.

By mid 1989 our finances had dwindled and the bookings were still not coming in. We decided to sell some shares. The best price we could get was around $1.60 each for about 4,000 shares. Those shares were worth $8.20 each in October 1998.

Where had our savings gone? The sale of our home in Melbourne had raised $140,000 of the $280,000 investment we needed for the camp, leaving a mortgage of only a manageable $140,000. I had believed we were set for life: with a little hard work we should be under-way and running well by July 1989 but, here we were, in July 1989, within a mere 15 months of taking over the business and we were actually beginning to sell off our assets instead of reducing the mortgage.

I knew our marriage was suffering; my self-esteem was lower than it had ever been; I felt like a total failure. But things got worse, even though I didn’t think they could. Faye fell and broke her leg. Trips back and forward to the hospital added to the stress and, worse, the leg wasn’t setting as it should. A couple of short trips to visit friends in Melbourne cheered Faye up no end and, on the second trip, I used the time to do some marketing of the Camp around Caulfield and Huntingdale, and further into the city. I had decided to give it all I had.

At one point I rang the Camp answering machine, which had a remote access facility — allowing me to check the machine for any recorded calls. At least, it should have allowed me to check it, if I had been able to get through, but I couldn’t. All I could get was the same recorded message “The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.”

I decided not to tell Faye. She didn’t need to be reminded at this stage.

On the way home, just outside Geelong, Faye asked if I had checked for messages at the Camp. A white lie seemed appropriate. We stopped at the next phone box though, and rang home. The line was engaged. Somebody must be leaving a message on the machine! Or were they?

The only message recorded on the machine turned out to be from our friends in Melbourne, a call made the day we left, saying something like “Must have just missed you — see you when you get here.” Why had I received an engaged signal if there were no messages on the machine, other than one from days before? My previous call obviously wouldn’t have registered because I couldn’t get past the Telstra recorded message anyway. How many calls had we lost during the three days that we were away? How many frustrated prospective clients had given up trying to get through because they also reached a recorded message telling them the phone was no longer connected?

Faye was still making regular visits to the hospital and was, of course, not able to participate in any of the work around the place, so found herself with nothing to do and plenty of time to think. She found more and more reasons to travel away from the business: to her elderly parents, to the hospital, to see friends. Finally the burden of a failing business and the slow and difficult recovery from the broken leg became too much to bear: our marriage ended on 26 October 1989.

I had already been taking prescribed drugs for stress; that afternoon I added a quantity of Scotch and locked myself in one of the cabins on the property. Faye, understandably, became seriously concerned about my welfare and called the local police who broke into the cabin to ‘save’ me from myself. This was one of the many low points that I was to suffer as I battled to retain my sanity, my business and my standing in the local community. And still Telstra denied that there were any phone problems at Cape Bridgewater.

At this point I need to fill in some details regarding an incident that occurred back in 1967, during the cultural revolution in China. At that time many young Australians were supporting the American fight against Communism in Vietnam and this young man was sailing with the Merchant Marines out of Australia. We were headed to China, from Port Albany in Western Australia, with a cargo of wheat, although the Australian Labor Party was against our ship leaving. A brief explanation of this China issue is discussed on my absentjustice.com website Chapter 7- Vietnam-Vietcong

I still managed to leave with my ship, the MV Hopepeak, believing I had left those troubles behind me. Apparently not.

When I took refuge in the cabin on the afternoon of 26 October 1989, only to find my refuge attacked by a Police rescue team, I was transported straight back to China in 1967. After some heavy discussions with my wife and my ‘saviours’ who, in my confused state, seemed more like the Red Guard soldiers than anything else, I was taken to hospital — in a straight jacket.

I will be forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who allowed me to return to the camp the following day, accompanied by my mate’s wife, Margaret. I will also be forever grateful to Jack for sending Margaret to ‘bail me out’ so to speak. The fun, however, had just begun.

CHAPTER 3

Margaret and I arrived back at the Camp to be confronted with a disaster area. Faye of course had gone the night before, following advice from various ‘do-gooders’ and welfare people who insisted that she needed to be in a ‘safe house’. Various doors had been left unlocked, meat had been taken from the deep freeze and left on benches, the deep freeze itself was gone. Every time we turned around we found another problem to confront. And, according to my diary, 70 or more students from Monivae Catholic College in Hamilton were due to arrive on the twenty-ninth, two days away. The students were booked in for five days and four nights. Without Margaret’s unfailing assistance I would have been wiped out.

Cleaning and shopping were at the top of the agenda. In my heartbroken state, mourning the end of a 20 year marriage, the shopping list alone was a mountain I had to climb. What to feed to 70 students plus staff? Finally I got my head around how much meat and dry foods to order but it was already Sunday evening and the Monivae group were due the following day; the first meal they would need was dinner.

Then the hot water service broke down. The staff were not so happy about cold showers! Even so, from then, through to 1994, Monivae College returned to the camp two and sometimes three times a year. Their support throughout this awful period was much appreciated: it kept me trading.

I realised that Margaret was becoming increasingly worried about my mental health when she invited Brother Greg, one of the Monivae teachers, to the house to talk to me. Later I discovered that I had been rambling on in my sleep the night before, much to Margaret’s consternation.

I knew Brother Greg reasonably well and, with Margaret holding my arms and Brother Greg holding my hands, we talked well into the night, working through everything from my experiences in China to the end of 20 years of marriage.

Margaret had been thrown in at the deep end and she carried so much through those 6 or 7 days. Her support was invaluable.

Religion also played a part in bringing me back from the brink to face the task ahead. Many of the women from the church came to help me keep the camp running and to hold me back from tumbling into despair again. But I missed Faye. Like anyone who has separated after so many years, I missed the touch and the caring of another, close human being.

Through all of this, phone problems continued. Around mid-November of 1989, Chris, one of the women from the church, mentioned in passing that I must have forgotten to switch on the answering machine the day before: she’d rung but the call just rang and rang before finally cutting out. By this time I had already lodged complaints with Telstra’s fault centre in Hamilton and I had begun to keep a log of phone faults and customer complaints about the phone: I was recording all complaints I received in an exercise book, together with the names and contact information for each complaint. I also noted the effect these lost calls were having on both the business and on me.

That same day Chris went to the phone in the Kiosk at the camp to phone out. The line was dead. My first thought was “A loose wire somewhere.” and so I removed the cover from the phone connection box to locate this ‘loose wire’. Both Chris and I checked the socket but everything seemed intact. Still the line remained dead.

At this point I had a brain-wave. I would try the customer’s coin-operated gold phone in the main dining room. This phone had a normal dial tone and was apparently working OK, so I dialled my office number, only to hear the dreaded voice again: “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” Of course, I actually had been charged for the call because the coin-operated gold phone certainly did not return my coins.

Five minutes later, after a trip to the main office for more change, I tried ringing again from the gold phone. This time the office phone appeared to be engaged (although, of course, it wasn’t) and the phone happily regurgitated my coins.

I used this testing routine, and others invented along the way, more and more frequently over the coming months but the situation was beginning to tell on me. Why was this still happening after so many complaints to Telstra. Was no-one paying any attention in there?

January 1st 1990 rolled around and I had a group staying at the camp over the holidays. Mrs Yasemin Sevik, one of the group, complained that the gold phone was not working. I duly recorded this complaint in my log-book and refunded Mrs Sevik’s money.

Later, during 1993, I hand delivered eighteen A4 pages of itemised phone complaints, including dates, times and names, to the St Kilda Road office of the then Shadow Minister for Communications, the Hon. Senator Richard Alston. These 18 pages included 183 logged faults, dating from late 1989 through to May 1993, as well as 53 written complaints from clients and tradespeople who had also taken the trouble to document their own experiences when trying to reach me on the phone. Mrs Sevik was the first complaint for 1990 and, by the 4th of March that year, I had ten more complaints on my list.

CHAPTER 4

Since I was no longer one half of a working husband and wife team I continually had to dig deep into my almost non-existent financial reserves to cover labour costs, or risk losing everything. With Faye gone I was suffering what is commonly known in the world of finance as a ‘consequential resultant loss’; now I had also had to begin to pay Faye a yearly dividend on her financial investment in the business, even though she was no longer contributing her unpaid labour, plus I had to find the dollars from somewhere to pay staff.

As we headed further into 1990 the future looked grim. The phone faults were no better; who knows how many prospective customers were lost because they couldn’t reach me by phone? Because the camp is in a fairly remote area, phone was the only access city people had.

By now the legal vultures were circling. I hadn’t been able to abide by the original financial agreement with Faye and her solicitor was demanding more money for his client. My first payment to her came due and I couldn’t raise the funds to re-finance. I was having trouble meeting my own legal costs, let alone finding extra for Faye. My son’s $3000 school fees were overdue and I had nowhere to turn. I couldn’t think beyond today. The outlook could never get any bleaker I thought. How wrong I was!

In order to pay some of the mounting debts, I had sold the 22-seater school bus I had originally used to ferry customers around, and purchased a small utility in its place.

Through mutual friends, I had met Karen, a divorcee from Warrnambool, some 100 kilometres away. At least the little ute meant I could see Karen a couple of times a week and the relationship developed to become quite serious. When Karen heard that Faye’s solicitor was about to wind up my business, forcing me to sell because I couldn’t raise the funds to make any more payments to Faye, Karen put her house up as security for a loan, thereby giving me two years of breathing space.

At about the same time I again contacted Telstra’s fault centre in Hamilton to find out what, if anything, Telstra was doing about the continuing phone problems at Cape Bridgewater. As usual I got the run-around but I was finally informed that a new exchange, about to be installed at Cape Bridgewater, would alleviate all the problems I had suffered in the past. Some four years later, as a result of an FOI request, I acquired a copy of a three-page, hand-written file note dated 15/8/91 which covers the discussions I had with Telstra regarding these faults. The date doesn’t correlate with my own records because I knew early in 1991 that Telstra were installing a new exchange and I had, in fact, told Karen, early in 1991, that this improvement would solve the phone problems and assure us of a bright future. This file note stated however:

“Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it’s not engaged — two calls from Collingwood PM 14/8/91.

This has been a continuing problem and he is losing a lot of business.

I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs. (refer Glossary for definition of RCM)

I also said we would have a look at the service now to try and get it working correctly until cutover.”

This note goes on later to say: “I rang Alan Smith 15/8/91 and explained that we believed the problems were caused by — specific exchange faults due to the age, which would be solved by the cutover to Portland AXE ......”

At least someone in Telstra had given us something to hang on to. We looked forward to the installation of the new exchange in July 1991 although I continued to log another 46 faults and customer complaints between 16th March 1990 and cut-over day, which turned out to be 18th August 1991, not July as we had originally been told.

CHAPTER 5

My relationship with Karen continued well as we worked together to attempt to pull the business out of the doldrums. Karen finally sold her house, raising a bit over $80,000, $65,000 of which went directly to pay my legal fees and to pay Faye most of what I owed her. It took me another 12 months to finally pay her out. Karen’s name was now officially on the title to my business.

Still very few new bookings were coming in and the camp was now badly in need of some maintenance work. This created a flow-on effect: the business looked sad and bedraggled without the necessary painting and upgrading and so people who passed by were not interested in staying. Because they were not coming to stay there was no money to effect the repairs and no ‘word of mouth’ recommendations being passed on.

On those rare occasions when a school or club did manage to get through and book in, we had no cash flow and so we couldn’t get credit to buy even the necessary food to feed the clients when they arrived. The operational side of the business began to look even grimmer.

Karen and I began to argue just as Faye and I had earlier argued. Karen could see her investment fast going down the drain and she began to ask why I had not told her the truth. “It’s now twelve months since I moved here and nothing has changed — the phone faults are no better!”

During all this time I continued to sponsor under-privileged groups to stay at the camp. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Much of the organisation for this week, including arrangements regarding food, organising a bus to collect the children, decisions about where to collect the children and discussions about any special needs the children might have, had to be handled over the phone since Ballarat was a 3½ hour drive from Cape Bridgewater. Of course, Sister Burke had enormous problems trying to contact me because of the phone problems.

Finally, after trying all through one whole week, Monday through to Friday, Sister Burke decided to drive the 3½ hours to make the final arrangements.

At this same time Karen and I had also been attempting to organise a series of ‘get-away’ type holidays for ‘over-40s’ singles clubs. These plans were not going very successfully: the response to our ads had been very poor (or was it just that no-one could get through on the phone?).

On the Saturday that Sister Burke decided to drive to us, just as she finally arrived at the Camp, Karen took a phone call from a very irate man who wanted some information about the singles week-ends. This caller was very angry and quite abusive and Karen took the full brunt of his fury. He couldn’t understand why we were advertising a business but never answered the phone.

Karen burst into tears: this was just the final straw as far as she was concerned. I tried to make a joke of it to relieve the tension by saying something about the problems we have dealing with the public. Now, Karen was then, and still is, a fine ‘horse lady’. She rode in cross country races and played polo amongst other things; she’s not someone you cross unthinkingly. And she can sure pack a punch! I know, because she almost flattened me that day. Not only did my legs fold under me, but my ego went the same way. And Karen continued to sob. Right at that moment Sister Burke appeared in the office.

I decided that absence was the better part of valour and removed myself, leaving these two fine ladies together. Finally, quite some time later, Sister Burke advised me that she thought Karen should leave Cape Bridgewater. It would be in the best interest of both of us, Sister Burke believed, and she would arrange counselling for Karen back in Warrnambool — here we go again, I thought.

The charity camp went ahead in April 1992; 35 children for five nights. It was a great success all round. While she was at the camp I asked Sister Burke to describe the phone faults she experienced in that dreadful week before Karen left. She referred to calls either ringing out or simply getting a dead line — no sound at all. And this happened for an entire week. Later I sent Sister Burke a very early draft copy of this book; after reading it she wrote back, saying “Only I know from personal experience that your story is true, I would find it difficult to believe.”

It is interesting to note here that, twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, also tried to make contact to arrange an annual camp. Sister Donnellon later wrote:

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”

Twelve months had passed and still there was no improvement to the phone system, even with a new exchange installed in Cape Bridgewater.

Back in May of 1992 however, we could not know, of course, that the stress created by the faulty phone system would continue for so long.

Karen was hospitalised as a result of this stress added to the worry that she would lose her investment in my business. She had come to believe that I had lied to her when I reassured her that the phone problems were over. I later learned not to believe anything I was told by Telstra.

After she left the hospital, Karen settled in a rented house in Portland. Without her assistance at the camp, which had, in the past, given me space to travel around, my promotional tours to schools dropped to almost nil. Still I continued to complain to Telstra about the phone faults which seemed to me to be getting worse, not better, since the old exchange had been demolished and replaced. From August 1991 through to May of 1992 more and more complaints of recorded voice announcements came in.

Again I began to question my decisions. Why had this move to Cape Bridgewater been so disastrous? Everyone takes a working phone as a given, but a faulty phone system had now ruined three lives; mine, Faye’s and Karen’s and, indirectly, my two children’s as well.

CHAPTER 6

In July of 1992 I spoke to the proprietor of O’Meara Bus Company regarding proposed arrangements for his buses to bring elderly groups to my camp on a regular basis. Mr O’Meara had, of course, suffered severe difficulties trying to reach me by phone and he was concerned that this would become an insurmountable problem. As he saw it, each of the groups would need to ring me direct to confirm their bookings. What if they couldn’t get through either? he asked. And so, without mentioning the name of the bus company, I wrote to Telstra to ask them to provide me with a written guarantee, stating that my phone service was up to network standard. Naturally I intended to pass this guarantee on to Mr O’Meara.

At about the same time, Karen mentioned a friend who had heard of someone in Melbourne who was complaining about the same phone problems that were crippling my business. Karen said her friend believed this was the proprietor of “The Society” restaurant in Bourke Street, in the centre of the city.

Of course, making phone contact with the restaurant was enormously difficult, but eventually I got through to Sheila Hawkins, who ran the restaurant. We arranged to meet and I travelled to Melbourne.

Sheila was also very interested in gathering a group together to tackle Telstra head-on. She already knew of an Ann Garms in Brisbane who ran the Tivoli Theatre Restaurant there and who was also having serious phone problems.

Armed with this knowledge I rang Ann and, as it happened, Ann was coming to Melbourne the following week. It was arranged that, while she was here, Ann would meet with the General Manager of Consumer Affairs for Austel, the Australian Telecommunications Regulator, and with Sheila.

Sheila, Ann and I had an enthusiastic meeting and Ann mentioned that she knew of at least one other Brisbane business that was in similar trouble with phones — a Japanese car spare-parts company run by Maureen Gillen. Like Ann’s business, Maureen’s business was also trunked off the Fortitude Valley Exchange.

By this time Sheila had contacted Graham Schorer who ran the Golden Courier Service out of North Melbourne. Like the rest of us, Graham had a very bad phone service. Finally our little group gathered together at the Society Restaurant in Bourke St, except for Maureen who couldn’t make the journey from Brisbane.

During the following week I spoke to Sheila a couple of times on her mobile, ringing while she was on her way in to her office. It was Sheila who suggested we call ourselves C.O.T. — the Casualties of Telstra. We were on our way down the path to justice, or so we thought. Unfortunately our battle had only just begun.

I still don’t know how I managed to drag myself through the last few months of 1992, but I did. And now the lies and corporate cover-up perpetrated by Telstra began to be exposed.

In October of 1992, at the Ibis Hotel in Melbourne, the COT group had our first official meeting with Telstra, presenting a united front of small-business telephone users.

Austel was now involved, concerned at some of the facts that the COT group were unearthing in relation to Telstra. We were seen, not just as a group of hot-heads, out to make trouble, but as a concerned group of small-business people who had been continually squashed and ignored by Telstra. Finally we felt that our claims were being taken seriously and were being seen as valid.

Also at this time, July/August 1992, I lodged the first of many FOI requests for documents to be supplied by Telstra. A letter dated 2nd July 1992, from a Mr Taylor (part of Telstra’s management team based at the Warrnambool exchange) stated however that Telstra had ‘no past fault records prior to June 27, 1991’. It later became quite apparent that documented fault records DID exist in Telstra’s archives, dating back as far as 1987 and continuing for many years after that. What else could be lurking in these archives, I wonder?

On 1st September 1992 the first Telstra ‘guarantee’ arrived, stating that my phone service was indeed ‘up to network standard’. Sixteen days later another ‘guarantee’ arrived, this one dated 18 September 1992. The ‘guarantee’ of the 1st stated:

“Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted.”

The ‘guarantee’ of the 18th stated:

“We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours.”

Because of the delay between my initial request and the provision of these belated ‘guarantees’, I had already missed out on securing the charter business with O’Meara’s Bus Lines. Later however, these documents became more important as we uncovered the extent of the skulduggery at management level within Telstra.

While visiting the camp, a local Telstra technician casually remarked that it was well known that congestion was a problem in my area. His attitude seemed to be that this was something country people just had to learn to cope with. I thought it seemed to be a very strange way of looking at the problem, particularly since my business was ‘going down the tubes’ fast. Why should I have to put up with a faulty phone service simply because I ran a country business?

During an FOI release in mid-1994 I came across four interesting documents which all related to this congestion problem. The ‘minute’ document titled “Subject PORTLAND - CAPE BRIDGEWATER PCM HBER” and the document marked as FOI no. A40558 are of particular interest. The second paragraph of the first document contains the statement:

“ When the ‘A’ direction of system 2 was initially tested, 11,000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.”

In other words, back in July of 1991, Telstra were uncovering 11,000 errors per hour in one direction and 216 per hour in the other direction when the acceptable level in the telecommunications industry is 72 errors per hour. Furthermore, document A40558 states, in part:

“i) LTS Melbourne were aware of the problem in early 1990 as optocouple measurements were documented on file dated 13/02/90 (ref P 34)

iii) Tong advises me that to his knowledge LTS Melbourne did not circulate any information on the problem until the work specification was finalised in October 1990.

iv) The Cape Bridgewater loop MUX was up graded between July and December 1991 after it was removed from the Cape Bridgewater link.

v) The Cape Bridgewater customer had documented complaints of call dropouts from 12/1989 to 12/1992 the later date some 7 months xx after xx the A735 loop MUX had been replaced by the RCM.

The question remains - why did it take one year for the Cape Bridgewater Loop Mux to be upgraded from the issue of the Work Spec. Tong says the OIC of Portland believes that the equipment was not touched prior to the upgrade.”

Obviously the technicians were uncovering faults and problems with the Cape Bridgewater phone system as far back as at least 1990, probably as a result of my continual badgering of them, but I was being told one thing while Telstra knew another. Here I was, with a business ‘bleeding to death’ and without any treatment available to stop the ‘bleeding’. If the business wasn’t bleeding, it certainly felt as if I was.

The third of these four interesting documents was titled “Portland — Cape Bridgewater — RCM System” and it stated, in part:

“Initial reports were of a vocal customer at Cape Bridgewater complaining of VF - cutoffs in one direction. The customer had been transferred off system 1 onto system 2 and 3 on the 24th February ‘93 and had experienced no further problems.”

I must admit that my sense of humour did manage to fight to the surface for a moment when I read this — ‘vocal customer’ indeed! Maybe this is why my voice has lost its customary strength. The interesting point is, of course, the reference to switching the ‘vocal customer’ from system 1 to systems 2 and 3. Since Telstra were aware of this problem when I complained, first in 1988 and again in 1990/91, of 11,000 errors per hour in one direction and 216 per hour in the other direction, why didn’t this changeover take place then?

As if this all wasn’t disturbing enough, in a letter dated 12th July 1993, the following information refers to 2 March 1993, 19 months after Telstra discovered the massive fault rates recorded above.

“Initial error counter readings Portland to Cape Bridgewater direction:-
	System 1	System 2	System 3
SES	0	0	0
DM	45993	3342	2
ES	65535	65535	87
At this stage we had no idea over what period of time these errors had accumulated. Attempts to test the inground repeaters using the “TRIOS” system where unsuccessful as the strapping records could not be located.”

The two FOI documents on the following pages show that thousands of errors continued to plague my service. It seemed nothing had changed - just more excuses from Telstra’s Corporate Management.

It is interesting to note the reference “we had no idea over what period of time these errors had accumulated” because the second page of this document states:

“The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.”

In other words, they didn’t know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had not been connected up. Since this was an un-manned exchange, this meant that no-one would know when a fault or faults occurred. Except, of course, the poor, defenceless customers.

This ‘not connected’ alarm was not discovered until March 1993 but, in September / October of 1992, Telstra senior management had written to me stating that they believed that the quality of my telephone service could be guaranteed as up to network standard when, just 5 kms down the road from my business, the exchange continued to accumulate errors with no alarms going off at the ‘manned’ Portland exchange. What a farce!

No wonder my ‘could-have-been-thriving’ business was sinking so fast. It seems like most of the local telephone technicians were oblivious to the continuing resultant call loss due to this ‘not connected’ alarm system in the exchange.

Here I was, scratching the bottom of the financial barrel, selling off anything I had left that was saleable to keep going and buy food for the next group that had managed to get through to make a booking because many schools and other groups do not pay up-front when they make their booking.

Meanwhile, until a group actually paid their bill, I had no money to pay my catering costs or wages. I was now borrowing from friends just to keep the camp running on a day to day basis. Karen, with three children to think about, was devastated by her financial losses and had lost all faith in my judgement. I had lost faith in my own judgement by this time too; I had now let down two different partners who had trusted me. Through all of this, of course, the phone faults continued and the useless ‘guarantees’ supplied by Telstra sat on my desk, a continual reminder that they had arrived too late: I had lost the charter with the bus line.

The COT group continued to negotiate with Austel and Telstra and this pressure finally produced results: Telstra approached me with a proposal for a compensation payout which was to include a confidentiality agreement to the effect that I would not disclose the value of any settlement which might be forthcoming as a result of this. I signed this agreement on 11th December 1992 and I have honoured this agreement not to disclose the amount of the payout without prior approval by Telstra.

That same day, Telstra’s area general manager and I were involved in a long discussion regarding what Telstra believed I had lost, financially, over the preceding 4½ years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and trades-people, describing their experiences with my phones. I clearly explained how much I had calculated my losses to be. On a number of occasions the manager left me alone to examine documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and she added that, if I needed to discuss anything with my advisors I was free to use the telephone; there was a direct outside line available at all times so I wouldn’t need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer and we calculated how much she needed to buy herself a relocatable house to set up as her home, thereby at least partly restoring her to a financial position similar to her position before she met me.

The documents provided by the manager were mostly hand-written and included copies of the so-called ‘guarantees’ that I had received. One of the hand-written documents stated that there had only been a single fault, lasting for 3 weeks, and causing the RVA message to be heard by incoming callers (this was the message stating that my number was not connected). This document also stated that the RVA message probably caused me to lose about 50% of all incoming calls over this 3 week period. Other documents referred to one minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. Telstra agreed to accept responsibility for these ‘minor’ faults, without admitting to anything in writing, if I agreed to their offer.

Naturally I protested. Again I went over the continuing and constant complaints I was getting from customers and I asked how a few ‘minor’ problems could possibly cause so many difficulties. I had nothing to bargain with however and the manager simply took a ‘take it or leave it’ position, commenting that this was Telstra’s last offer and advising me that the only other avenue I could follow would be court proceedings. Her final comment was along the lines of ‘Telstra has more time than you have money to fund court proceedings.’ These wonderful customer relations, I believed, left with me no other option and so, finally, and with some regret, I accepted their ‘final offer’.

Later, during 1994, I was provided with a copy of a document which shows that, while out of the meeting room, this same area general manager had made notes regarding our discussions, including a reference to the fact that I had rung my advisors on a number of occasions while she was out of the room. If the phone line I was using was a direct line to the outside, how did she know whether I used it or not? And how could she know who I rang if I did use the phone? I have since, unsuccessfully, asked Telstra to explain this on a number of occasions. This issue has also been raised with the Senate and with the Telecommunications Industry Ombudsman (TIO - refer Glossary). So far there has been no satisfactory answer. The questions remains: were my private phone discussions that day listened to by someone and is this how the manager knew exactly how much to offer me, because she had heard the discussions I had with Karen regarding the cost of buying her a relocatable house?

Pages 111 and 112 show that Telstra officials later provided the Australian Federal Police with documents which confirmed that Telstra had listened to my private and business phone conversations (called ‘voice monitoring’) for some time. Was this one of those occasions when Telstra people were listening in?

CHAPTER 7

These ‘secret’ Telstra documents relate to the so-called ‘guarantees’ that I had received from Telstra. The last item included in point 4 of the document numbered C04006 refers to “RVA on congestion” This RVA was, as previously mentioned, the message indicating that my phone had been disconnected. Also, during 1993, Austel confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless you were aware of the difference (and most people certainly wouldn’t be aware of the difference) callers would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal. Because the local Cape Bridgewater exchange was such old technology with so few lines, of course it was congested — it was probably nearly always congested! This meant that it was quite likely that many prospective customers gave up trying to reach me because they believed I had ceased trading. No wonder I didn’t have many new bookings.

At point 16, on the page numbered C04007, there is a reference to “... — Mr Smith’s service problems were network related and spanned a period of 3 - 4 years.” and then, on the page numbered C04008 another reference “Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.” According to the hand-written, note at the bottom of C04008, signed by the area general manager I had dealt with before, “These are preparational notes recorded at the time of settlement. Alan Smith was not prepared to provide better substantiation of his claim.” This seems to me to indicate that the writer was quite clear, in her own mind, about the severity of the faults I had suffered and, since she obviously already knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could she possibly have provided the two guarantees that I received three months before this? This is even more astounding because document C04008 also states “with some difficulty to detect exchange problems in the last 8 months” . This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992. As a responsible corporate senior manager, how did this person ever allow the two ‘guarantees’ to leave her office?

CHAPTER 8

The information in this document is interesting, bearing in mind the two ‘guarantees’ of September 1992, and the fact that Telstra knew that at least one fault had been occurring for 8 months.

Although I had the ‘guarantees’, I continued to complain about the faulty phone service, particularly call-drop-outs when, part-way through a conversation, the line would simply go dead, and about short duration rings when the phone would ring once or twice and then stop — with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called ‘Elmi’ machines - refer Glossary) to be installed; one at the local un-manned exchange at Cape Bridgewater and another at my office. These two machines were set up to work in conjunction with each other.

On 13th October I complained of four calls that had dropped out, at 1.20, 1.40, 2.00 and 3.00 and a single time when I had answered the phone to find a dead line. The Telstra technicians found, as they had in many instances before, no faults that they could detect.

I continued to work at getting my business running successfully and, at the same time, kept trying to sort out the continuing phone problems.

Two years later, in 1994, as part of a bundle of documents sent to me in response to one of my FOI requests, I discovered two documents relating to the problems I had encountered on 13 October 1992. The first was a hand-written file note stating “We had the Elmi disconnected at the RCM (exchange) and were installing it at Mr Smith’s house and the CCAS showed no evidence of above (not receiving ring) 1.20, 1.40, 2.00 and 3.00.” (refer Glossary for definition of CCAS)

The next step was to ask Telstra, through FOI, to supply any ‘Elmi’ print-outs they had from September/October 1992. Some weeks after this request was lodged a number of documents arrived which I found quite alarming, including the tapes reproduced on the previous page, which show that the call drop outs and dead lines that I had experienced appeared on Telstra’s monitoring equipment records as answered calls at 13.29.25 (approximately 1.30pm) and 15.01.11 (approximately 3pm).

The issues surrounding the ‘Elmi’ incident become even more alarming and one question that has never been satisfactorily answered is: Why would a local technician state that the ‘Elmi’ equipment was disconnected at the exchange and was to be installed at my house when it is clear from these two ‘Elmi’ print-outs that it was actually installed and operating correctly at both locations?

All this obviously brings Telstra’s fault centre into question. How accurate are their records and how often are complaints like mine ignored by Telstra?

By this stage of the battle, with two partners lost and my health deteriorating, my business began to suffer even more. Why would no-one listen to what the members of COT had to say? Why would no-one look at all the information we had collected between us?

The members of COT continued to draw strength from each other. We had many group discussions as we tried to find a satisfactory way to deal with the deception of Telstra management but we were, after all, simply five small-business people struggling against the might of a huge corporation. Not very good odds!

As we struggled from the end of 1992 to the New Year of 1993 I began to wonder if ‘settling’ with Telstra (via the area general manager) had been such a good idea after all. Nothing had changed. Phone faults continued to run rampant with my attempts to keep the business going. How could this be still continuing? The new telephone exchange was supposed to have rectified all the problems I was suffering.

During January 1993 I registered eight more faults with Telstra. Those customers who had managed to get through to place their bookings were also experiencing phone faults when they arrived at the camp. The coin-operated gold phone unit in the main hall, installed for customer’s use, became the butt of continual jokes. “Why bother to go to NSW to play the pokies?” the customers joked, “We can just come here and get the same result with the gold phone: it takes our money, gives either no service at all or very little value for money, and leaves us as frustrated as if we had gambled away our cash.” Calls continually drop out, they complained, as soon as they said “Hello”.

According to my records, two of the eight complaints lodged in January 1993 were related to the gold phone.

By this stage my mortgage payments were causing a huge headache. I had been forced to re-finance through the Commonwealth Development Bank, incurring more set-up fees, and because I couldn’t afford to maintain the camp buildings properly the place was beginning to look abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!

Ann Garms and Graham Schorer had, by now, become ‘comrades in arms’ in this war we were fighting. We wondered if we could ever be in a position to expose Telstra’s unethical corporate strategies and their continued and apparently deliberate mis-handling of our complaints. Ann had also begun to suspect that, on the rare occasions that our phones actually worked properly, the lines were being bugged.

The first experience I had of the possibility that my phone was bugged came after the COT group had been on “A Current Affair”, a news show on Channel 9, a national TV channel. This was our first experience of an interview situation and we soon discovered that we were novices at this process. We had a lot of technical information to back our legitimate complaints about phone faults and to support our attempt to organise a Senate hearing into our cases but, because of our inexperience at putting our case, this is not quite how it came across on the show. Because our information was so highly technical it was a bit like trying to prove that a patient has cancer without actually having a biopsy or an x-ray.

Because we were so disappointed at how our case came across on Channel 9, I rang the Australian Broadcasting Corporation (ABC) in Melbourne to speak to the co-ordinator of their “Four Corners” show, in an attempt to get another chance to tell our story to the Australian public. I was told that the person I needed to speak to was based in their Sydney office (I believe his name was Knight) and that my call would be transferred to him. I was quickly connected and proceeded to describe what had happened with ”A Current Affair” and to explain that I thought a more in-depth investigation of our situation by a program like “Four Corners” would expose Telstra’s incorrect charging as well as the problems with their fault reporting system, thereby alerting the rest of Telstra’s customers.

After I had babbled on for quite a while, I referred to the co-ordinator by name, only to be told the person I was speaking to was not “Mr Knight”, but John Stanton. Furthermore, Mr Stanton was not with the ABC “Four Corners” show either. He was not even with the ABC at all. He was, in fact, a senior executive with Telstra, based in Telstra House in Sydney.

“How can this be?” I asked, “The ABC in Melbourne switched me directly through to their Sydney office.”

Mr Stanton paused for about 20 seconds and then confirmed that he had indeed patched into my phone line even though I was connected elsewhere. He then suggested that he would set up a meeting with the members of COT, if we so wished.

So, with Ann already worrying about her phones being bugged from some time in 1992, I now had been through the same experience

CHAPTER 9

It is interesting to note the date of 19/08/92 on the first of these two documents relating to Ann Garms’s business, The Tivoli Theatre Restaurant: this is about the same time as the COT group was first formed.

In the comment at point 19, “Description: Line 1 NDT NRR suspect sabotage ?????” the ‘NRR’ refers to ‘not receiving ring’ and, at the bottom of the document, at points 1, 2 and 3, the comments are even more interesting and will be covered more fully in Chapter 18.

The second document, with the number B00474 in the lower right corner (see following page), also relates to Ann’s business and raises a number of other questions. Who are these people discussing in this letter? Does the reference to “Compass Security” refer to Compass Airlines who were linked to the same exchange as Ann, in Fortitude Valley? Compass Airlines was a small airline company which tried to break into the system in Australia and finally went bankrupt. The owner of the airline stated that one of the reasons for the company never ‘getting off the ground’ was continual problems with phones and it was widely speculated in the media at the time that some form of sabotage had been involved. This document certainly doesn’t do anything to dispel that rumour.

Another question that this document raises is why a ‘bug scanning device’ was requested by AA (whoever that is) of protective services?

After reading these two documents it is easy to understand how Ann and I felt every time we used the telephone. Who was listening to us and why?

Graham Schorer was elected as spokesperson for COT and, early in 1993, he met with the then chairman of Austel, Mr Robin Davey. By February / March of that same year, following that meeting, a number of politicians had become interested in our situation. The question remained, would these politicians actually take any action on behalf of small-business people, or would they protect the ‘milking cow’ of the Telstra corporation?

So the COT group began their push to get the Australian Senate to pay attention to our plight, providing the finance from our already depleted own pockets for travel to and from Canberra, where the seat of power is located.

At this stage I was still suffering from major problems with the phone system although, through some fancy footwork with the banks I had at least managed to stave off a repossession order.

As a result of all the pressure, Karen had become a born-again Christian. Would her prayers be answered though? I knew she was asking for help for us all in our ongoing fight for justice but would Telstra’s true colours ever be exposed? Their power over the Senate was becoming more and more apparent to us and we were afraid they would have enough control to put a lid on the whole saga.

By now I had accumulated more than seventy separate letters of complaint from customers who had been unable to reach me by phone. One of these, dated 5/2/93, came from a Mrs Elsie Teer of the Werribee Outreach Centre in Victoria, writing to say that they would have to cancel their booking because of ‘poor membership response’. Mrs Teer also noted that she had tried to ring me over the last five days but that ‘it appears that you don’t answer your phone’.

I later received a letter dated 17/5/93 from Ray Morris, a senior Telstra technical engineer. Mr Morris wrote regarding his own experience of trying to ring me, stating:

“On the 24/2/93 I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267 - I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts ie: “answered” and I received a loud noise similar to a radio carrier noise and a very faint ‘Hello’.

At least someone inside Telstra acknowledged that I had a problem with the phone service!

The really significant point to Mr Morris’s letter (see next page) however is not just his recognition of the problems I had. On 12/12/94 Mr Morris made a Witness Statement, in the form of a Statutory Declaration witnessed by a lawyer. This Witness Statement was used by Telstra as part of their defence of my arbitration (refer Glossary). There is no mention of Mr Morris’s own experience with my phone anywhere in this Witness Statement.

Mr Morris appeared to be more than just a little concerned about my complaints during the time he was involved in these investigations. Perhaps he was pressured to stay quiet during my arbitration — who knows? What is apparent from a number of FOI documents is that not all Telstra engineers or technicians treated our complaints as genuine, as the following example shows.

The official spokesperson for COT is Graham Schorer and, on one occasion I phoned Telstra’s 1100 number to report difficulty in getting through to him on the phone even though he has thirty-seven lines in to his courier business. I spoke to a Mr Richards at Telstra; he advised that he would immediately have Mr Schorer’s lines tested. Some months later I came across FOI document K00045. In this document, Mr Richards has made a hand-written note to the effect that, once it ‘clicked’ that this was a COT member, the service was not tested.

In a second, similar incident, I have an un-numbered FOI document regarding a complaint I lodged about my own phone service, this time to a Mr Watson. Mr Watson’s hand-written notes state:

“Probably caused by ‘RCM’. No need to investigate, spoke with Bruce, he said not to investigate also.”

Either Telstra had decided that the members of COT were fools or their fault center knew that the faults we were reporting were common faults which could not easily be rectified and so they had decided to ignore our complaints rather than attempt to fix the problem.

CHAPTER 10

In the first five months of 1993 I received another eleven written complaints, including letters from the Children’s Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business, unabated, from April 1988 to mid 1993.

Coming into June of 1993 things began to warm up for COT: the then Shadow Minister for Communications, the Hon. Senator Richard Alston, was showing an interest in our claims and Senator Ron Boswell of the National Party, who obviously had no political gain in mind, became involved also. Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, at the other end of the country, he has continued to offer his support.

David Hawker MP, my local parliamentary member was another who saw his ‘duty of care’ to his constituents and so answered our call for help. Mr Hawker has continued to go into battle on our behalf for ten years now.

During political campaigning through June of 1993 both Senator Alston and Senator Boswell pushed for a Senate Inquiry into our claims and, I have recently been told by an ex-Telstra employee, they were so close to pulling it off that it was not funny. If this Senate Inquiry had got off the ground, heads in Telstra would have rolled but, since this didn’t happen, those same ‘heads’ continue to control Telstra to this day.

While the politicians and Telstra conducted their deals behind closed doors, I continued to lobby Austel for assistance and, between February and June of 1993, I provided Austel with more and more evidence of incorrect charging on my 1800 free call service and all the other lines servicing my business. Finally John MacMahon, General Manager, Consumer Affairs at Austel asked me to record all the short duration calls and RVA’s that were still being charged to my 1800 account and which were also showing up on the ‘Elmi’ testing machine which had been installed at the local exchange.

You will see as you get further into this story that there is clear proof of already existing technology which allows faxes to be diverted, printed off and redirected without the sender’s knowledge or permission. If faxes can be diverted in this way then it is not a huge jump to assume that phone calls can also be secretly diverted, although phone calls would have to terminate at the phone they were diverted to, of course. Were all these short duration calls that I was continually receiving actually calls which began to ring at my business and were then caught and diverted to another number? In the early days, it didn’t even occur to me that this could be the explanation. Now that this saga is so much further ‘down the track’ however, it seems to be a very likely scenario. If I am right, what are the ramifications for other telephone subscribers? (This diversion of calls is discussed in more detail on page 177.)

Not only were Austel involved in the saga by this time, but we were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that I continued to ask Telstra, under the rules of FOI, to provide me with copies of the ‘Elmi’ data from the RCM that the camp was connected to, for the period of May to July 1993. It is now 5 years since my first request for this data and all I have so far received is information covering a single 6-day period during May of 1993, which I came by accidentall

CHAPTER 11

As a result of my constant complaints to Austel regarding the many phone faults I had suffered with, including the incorrect charging, Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time in this saga, Telstra investigators were sent to Cape Bridgewater. At last, or so I thought, I would be able to speak directly to people who knew what they were talking about. At last, or so I thought, I was getting somewhere.

THE “BRIEFCASE SAGA”

Dave Stockdale and Hugh Macintosh of Telstra's National Network Investigation Division arrived at my office on 3 June 1993, with what later transpired to be a briefcase full of magic tricks. We spent some considerable time ‘dancing around’ my summary of the phone problems I had been complaining about, with little input from Stockdale and Macintosh and with more and more anger and frustration on my part. Finally they prepared to leave and head back to town. My own transport was, by this time, long gone: sold to pay some of my mounting debts, and so Stockdale and Macintosh offered me a lift. Along the way they stopped briefly at the local exchange at Cape Bridgewater where Stockdale took a tape from what I later learned was one of Telstra’s ‘Elmi’ machines. Then he replaced it with a new tape which he threaded into place.

After spending some time in Portland I got a lift back to Cape Bridgewater with a neighbour. In my office I found that, lo and behold, Aladdin had left behind his treasures: The Briefcase Saga was about to unfold.

When I found that the briefcase was not locked, I opened it to find out who it belonged to and discovered that it belonged to Mr Macintosh. There was no phone number in the case that I could contact Mr Macintosh on directly so I was forced to wait until the next morning when I could ring my local exchange.

Imagine how I felt when the first thing I actually saw in the briefcase was a file titled “SMITH, CAPE BRIDGEWATER”. After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective. Some of the documents in this file were much too technical for me to understand or interpret. Some of those that I could decipher however dated back to the ex-gratia compensation payment I received on 11 December 1992. Then I froze. I had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three week RVA fault in March of 1992 had actually lasted for ‘8 months’, not the three weeks that I had been told on the day that I accepted the compensation pay-out. By hiding this information from me Telstra deliberately misled me — this type of deception, under these conditions, is illegal.

Dated 24/7/92, and with my phone number in the top right corner, this document refers to my complaint that people ringing me get an RVA “service disconnected” message with the “latest report” being dated 22/7/92 from Station Pier in Melbourne and a “similar fault reported” on 17/03/92. The final sentence reads: “Network investigation should have been brought in as fault has gone on for 8 months.”

The second document is a Telstra minute dated 2/7/92. This document shows that the local Telstra technicians believed my complaints were correct regarding the ‘service disconnected’ RVA on my line. Further, they also believed that the problem “is occurring in increasing numbers as more and more customers are connected.....”.

In November 1992, after I had received Telstra’s written guarantees stating that my service was up to network standard and just before the settlement arranged by Telstra’s area general manager, Don Lucas of Telstra also wrote to me confirming that the RVA fault had only lasted for three weeks and adding that it caused an average loss of 50% of calls during that time.

Now, on one hand we have Telstra reports that the RVA fault had only occurred for a single period of three weeks and we have other Telstra documents, including the report I found in this briefcase, reporting that the RVA fault had been in existence for 8 months and that the technicians believed I was correct. Which are we to believe?

Other pieces of alarming information uncovered in the briefcase were printout tapes from the ‘Elmi’ machine. These showed 29 short duration incoming calls to my service in May of 1993 alone. These lost calls could very well have been 29 different customers who couldn’t get through. Even worse, four of these calls, which never got through, were charged to my 1800 account! Later I was to provide this information to Austel.

As the weeks passed Austel became increasingly interested in what I had seen in this briefcase. A letter dated 3 August 1993, from Austel’s General Manager, Consumer Affairs to Telstra’s Group Manager - Regulator, Dennis Hambleton, is reproduced below. This letter indicates that Austel have requested an immediate copy of all the documents which were in this briefcase, and which have not already been forwarded to Austel

I sent off a number of Statutory Declarations explaining what I had seen in the briefcase. Later Austel was told that they had all the information which was originally in the briefcase that was left at my office that day, however that was not correct. Late in 1994, among a late release of FOI documents, I learned that Austel had not been provided with some very sensitive material that had been in the briefcase.

After finding this document I sent a copy to the TIO’s (Telecommunication Industry Ombudsman - see Glossary) office with a covering letter explaining how important it was that Telstra had misled Austel into believing they had been given everything that had been in the briefcase.

Another letter also refers to documents in this briefcase. This letter, dated 27 August 1993, was written by Telstra’s Corporate Secretary, Jim Holmes, to me. In this letter Mr Holmes states:

“Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra’s property and therefore are confidential to us.

I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.”

Mr Holmes carefully omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation. The information in this briefcase proved that senior Telstra management had deceived and misled me during these negotiations and, at the same time, provided letters stating that the phone system to my business was up to network standard when the information in the briefcase clearly proved that it was certainly nowhere near ‘up to standard’.

On June 17 1993 the General Manager of Telstra Commercial, Victoria/Tasmania, wrote the following confidential internal memo to the Manager of Network Investigations.

Quite clearly this indicates that not only was Telstra’s area general manager fully aware, at the time of my settlement on 11 December 1992, that she was providing me with incorrect information, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception — a deception which seriously influenced my judgement of the situation.

Misleading and deceptive conduct such as this, in a commercial settlement such as mine, is a direct contravention of the Australian Trade Practices Act but this issue is yet another which has not yet been addressed by Telstra. Even more alarming, the arbitrator handed down his award on 11 May 1995 without questioning Telstra’s unethical behaviour even though I raised this issue in my claim documents, pointing out that Telstra had knowingly deceived me at this settlement meeting, thereby placing me at a commercial disadvantage.

In another letter dated 8 June 1993, Austel’s John MacMahon explains to Telstra that I had complained of continuing phone faults, even after the ‘settlement’. Mr MacMahon goes on to say:

“Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL’s consideration of any action it should take.

As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”

It seems that Austel’s concern regarding the sensitive information I had originally found in this briefcase was warranted!

CHAPTER 12

Back in April of 1993 I had become so concerned about what was going on in the Telstra Corporation and what sort of devastating effect this corporate thuggery could well be having on other small businesses around the country, that I had phoned Malcolm Fraser, ex-Prime Minister of Australia. I told Mr Fraser about the information I was uncovering and how I was finding not only phone faults but also misleading and deceptive commercial conduct which appeared to contravene the Trade Practices Act.

By this time a number of articles had appeared in my local newspaper and interstate gossip about the COT group was beginning to grow. As a result of this Julian Cress from the Channel Nine ‘Sixty Minutes’ program attempted to contact me. This fax speaks for itself.

Also by this time, June of 1993, the public were becoming interested in what they were hearing about our battle.

At Camp Bridgewater, we acquired a logo specially for the over-40s singles club which we were calling “The Country Get-A-Ways” and I hit the road with a vengeance, marketing a range of different week-end holidays. We had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia and a Saturday morning shopping tour to Mt Gambier, also in South Australia. This meant we were able to market the holidays in both Victoria and South Australia.

A special feature in the Melbourne Age Newspaper gave the project a great write-up and I began to feel things were finally looking up for the camp. My spirits rose, at least temporarily. Then another plummet into despair: on 26 October a fax arrived from Cathine, a relative of the journalist who had written the Age feature:

“Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.”

Cathine had been ringing on my 1800 free-call line. My spirits sank right back down again.

Later in this saga I checked this fax against Telstra’s own CCAS data for that day. Telstra’s records show one call at 12:01, lasting for 6 minutes and another call at 12:18.14, lasting for 8 minutes. There were no incoming calls at all between 12.30 and 2.44 that day. Where had Cathine’s calls been going? I was devastated but I decided not to let the bastards get me down. Their continuing lies and assertions that they had found no faults on my service line must be exposed.

So, I stepped up the marketing of the camp and the singles-club week-ends, calling on numerous recognised social clubs around the Melbourne metropolitan area and talking personally to the people in charge. Over the next few weeks I spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City. I also visited other singles organisations in Ballarat and Warrnambool, large country centres in Victoria.

Further newspaper advertising followed with ads placed with the Leader Newspaper group in Melbourne. This local newspaper group covers 23 different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch etc.

Complaints about the phones continued. People had so much trouble getting through to the camp and although some obviously persevered, God knows how many simply gave up trying.

The two letters in appendix 6 show the less-than-enthusiastic response from Telstra when the Deputy TIO attempted to extract from them an explanation of entries missing from the White Pages telephone directory in 1993. These entries were specifically for my Country Get-a-way Singles Club holidays and I went ahead with an extensive advertising campaign, unaware that the entries were not in the telephone books. I now wonder if there is more to these missing entries than meets the eye because, if there was a simple, above-board reason for my advertisements being left out of 18 major phone directories then why has Telstra never offered an explanation? As the Deputy TIO says in his letter of 29/3/96, he believed his office would simply “be flogging a dead horse trying to extract more” from Telstra on this matter.

One Saturday evening a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the camp as I pictured it but I was trapped, like a rabbit in car headlights, with no way to turn. It was a vicious merry-go-round. Without customers I would go broke quickly and the customers couldn’t reach me because the phones didn’t work. Right then Graham Schorer, the COT spokesperson, rang. He kept urging me to hang in there, convinced that we would win out in the end. Later, even Ann Garms, who is usually so strong and determined, broke down over the phone, crying that it was impossible to go on. This time it was my turn to be strong; “Hang in there, Ann.” I told her, “We’ll beat the bastards yet, you’ll see.”

The process became even more of a roller-coaster ride. My spirits rose once I had hosted a few successful Country-Get-Aways in the following few months but it was only a few, not nearly as many as I knew should have been responding to my advertising and marketing and, inevitably, my spirits sank again as bookings dwindled.

Finally, in desperation, I remembered a clinical psychologist the COT members had contacted back in 1992, when we were first formalising the group — Dr Don Burnard. At the time Dr Burnard had written a report regarding his opinion of our individual conditions, noting the breakdown in our psychological defences and referring to the excessive and prolonged pressures we were being forced to endure. In this report Dr Burnard went on to say:

“All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.”

Now it was May 1993 and nothing had changed. I rang Dr Burnard’s office, looking for support. My conversation with his office was interrupted three times by phone faults. Later I received a letter from Dr Burnard’s office, saying:

“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.”

Between May and October of 1993 I received many letters from schools, clubs and singles clubs, each writing of the difficulties they had experienced trying to contact the camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their ‘Resource Guide’, in which I had advertised, had been direct mailed to schools and given away. Most of the other advertisers with ads similar to mine, he went on to say, had experienced an increase in inquiries and bookings after the distribution of these books and so it was clear to him that the ‘malfunction of your phone system effectively deprived you of similar gains in business.’ He also noted that he had himself received complaints from people who had been unable to phone my camp. They were asking him why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

“Problems with contacting you by phone. Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992.”

In August of 1993 Rita Espinoza from the Chilean Social Club wrote:

“I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on the 10th of August around 7 - 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have made arrangements with another camp.”

As more and more letters like this arrived in my office I became convinced that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that I was not inventing the problems I was complaining about?

Austel’s General Manager of Consumer Affairs, John MacMahon, was becoming more concerned at the evidence COT members were producing; evidence of continuing complaints like these, as well as evidence of incorrect charging. These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a Mrs Haddok from Croydon. Mrs Haddok wrote regarding her problems getting through on 22 May 1993 and how she continually reached a recorded voice announcement saying that my phone had been disconnected. She commented that she thought this message was ‘quite strange’. My Telstra 008 account for that day (see below) showed a number of very short calls. Apparently I was being charged for RVA messages!

I also mentioned to John MacMahon my suspicions that:

the COT members’ phone calls were being intercepted by Telstra and
some of the short-duration calls I had been billed for, but which I had not answered, were actually incoming calls that were being diverted to an unknown location.

Mr MacMahon did not agree with these suspicions and yet, in an in-confidence, internal Telstra memo dated 25/11/93, on the subject of short duration calls on my phone lines, Telstra stated:

“Mr Smith is obviously well aware that customer premises equipment (CPE) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged. Telephone answering machines, facsimiles and call diverters typically are at the centre of these disputes.”

Information on page 72 in the next chapter (13) shows that neither my answering machine or my fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since I had not authorised any call diversion on any of my lines, this raises the question: Who then had authorised the diversion of at least some of my incoming calls?

CHAPTER 13

Later in 1993 a Mrs Cullen from Daylesford Community House contacted me to let me know that she had tried unsuccessfully to phone me on 17 August 1993; first at 5.17 pm and again at 5.18, 5.19 and 5.20. Each time she phoned she reached a dead line. After the fourth unsuccessful attempt Mrs Cullen had reported the fault to Telstra’s Fault Centre in Bendigo on 1100. She spoke to an operator who identified herself as Tina. Tina then rang my 008 number and she couldn’t get through either.

Telstra’s hand-written memo, dated 17/8/93, reports Tina’s attempt to contact me and refers to Mrs Cullen’s complaint to 1100, recording the times that Mrs Cullen had tried to get through to my phone.
Document R11519 is a copy of my itemised 008 account, including 17/8/93. It is quite clear that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel.

After Mrs Cullen had reported her experience to the fault centre, Telstra began to take a pro-active approach and arranged for tests on my line to be carried out from a number of different locations around Victoria and New South Wales. Telstra then notified Austel that some 100 test calls would take place on 18/8/98 to my 008 free-call service.

That morning I answered two calls from Telstra commercial, one lasting six minutes and another lasting eleven minutes — these two occurred first thing in the morning as they set up ready for the following test calls throughout the day. Over the rest of that day however, I only remember answering about eight or nine calls in all. Certainly I was stressed by then, possibly I wasn’t thinking entirely clearly, but even so I am sure I would remember if I had answered 100 calls, or even twenty or thirty for that matter. Certainly I didn’t answer 100 calls.

Some days later my 008 phone account arrived and, lo and behold, something like 60 short duration calls have been charged to my service! I queried this with Telstra commercial, asking how I could be charged for so many calls which did not connect and which I certainly did not answer. Telstra wrote to John MacMahon of Austel on 8 November 1993, noting that I had queried the accuracy of the data regarding 67 calls made in a 54 minute period. They went on to say that I had acknowledged answering a ‘large number of calls’ but that I also did not believe I had answered all the calls I was charged for. Finally they reported that all the evidence indicates that ‘someone at the premises answered the calls’. Although Austel has asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, so far Telstra have refused to supply the name.

The phone faults had started a snowball rolling down the mountain. The lack of customers of course meant a lack of income, my financial situation became worse and worse and, with my marriage over as well, my health suffered more and more. Friends began to notice the change in my personality and those few clients who did manage to make contact and book in were also commenting on my apparent ill-health.

Mrs Cullen’s group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group, complaining that my customer, coin-operated gold phone service was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line kept ‘going dead’ and they both supplied their names and addresses.

Late in 1994 I was supplied with some documents in response to one of my FOI requests. This batch included two documents which are of particular interest in relation to the Telstra test calls of 18/8/93. These documents, numbered K03433 and K03434, showed 44 test calls, numbered from 8 to 63, to the Cape Bridgewater exchange, with some numbers missing. It is interesting to note, since I believe I only answered eight or nine of the test calls, that nine of the calls recorded on these two documents had tick or arrow marks beside them.

Since receiving these two papers I have continually asked Telstra what the marked calls represent but I have not received any response to my questions.

Document K03434 includes a note stating:

“Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CWBEX (Cape Bridgewater Exchange). I gave up tests.”

It seems obvious that this remark refers to the test calls that were to have been made to my phone on that day.

Another FOI document received in this batch, numbered A03254, was a copy of a Telstra e-mail dated September 28, 1993. This e-mail referred, in part to a recognition of the “... duress that the COT members are suffering” and goes on to say:

“... perhaps I am getting too legalistic and defensive but we can’t afford to let anything get away. However, our best option is still to force these cases down a legal structured path.”

Also interesting is FOI document C04094. This also indicates that Telstra’s management team was trying to force the COT members into a court situation even though they were fully aware that their highly paid lawyers would eat us alive. The aim seemed to be to ‘hang us out to dry’ as an example to other’s who might complain about Telstra services in the future.

On 21 April 1993, a document headed “COT cases latest” was forwarded to someone called Don. This document confirms the COT members’ growing belief that Telstra were planning to use our claims and possible court case to stop any further claims against Telstra, ever. The author of this document stated:

“Don, thank you for your swift and eloquent reply. I disagree with raising the issue of the courts. That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious.....”

Clearly, Telstra management intended to decide when claimants were becoming ‘vexatious’ and that this would be the time they would threaten the claimants with legal action. And this decision comes from a corporation which is continually held up to be a benevolent organisation, acting for the good of the Australian public while, behind closed doors, Telstra management intended to turn legitimate claimants into ‘lawyer fodder’ if they persisted with their claims.

This last Telstra document dated April 1993 had a particularly devastating effect on me. Some time during September or October of 1993 I had advised Austel’s General Manager for Consumer Affairs, John MacMahon, that Telstra’s General Manager (Commercial) had instructed me to direct all my future phone complaints through their outside solicitors. These complaints were all to be made in writing, addressed to a Ms Denise McBurnie, Level 43, 101 Collins St, Melbourne (see Telecom Memo dated 15/11/93 - next page).

Much, much later I was told that this strategy was intended to wear me out or force me to hire my own legal practitioner to deal with Telstra’s solicitors. Sometimes I waited up to two weeks for a response from Ms McBurnie and the time and effort involved in documenting all the on-going faults, while still trying to run a failing business, certainly worked in Telstra’s favour. Somehow I struggled to keep focussed on what the COT group were pushing for: a Senate inquiry into Telstra’s unethical treatment of our small group of legitimate claimants.

A letter of support from a worker at D Madden & Co of Warrnambool (Lawyers), dated 10/11/93, helped me feel less alone and confirmed my decision to fight on. Telstra had to respond regarding their treatment of customers complaints: they must be stopped from continuing their bullying tactics. This letter from Madden’s says, in part:

“I am writing in reference to the proposed Senate Committee Investigation into Telstra.

As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:

1. Calls being disconnected during conversation.

2. Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.

3. An engaged signal received by callers despite a number of lines being available.

4. Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.

Our firm duly contacted Telstra on a number of occasions in an effort to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”

The letter goes on to confirm support for the call for a Senate Inquiry into problems within Telstra’s network and to advise that my name and address had been passed to Madden’s by Mr David Hawker, the local Member of Parliament, with regard to a public meeting we were then organising.

Like previous documents relating to phone problems in the area, I passed this on to Telstra’s solicitors, together with more information showing incorrect charging on phone accounts. I then wrote to Ms McBurnie, dated 12/11/93:

“On trying to fax you the information you received this morning I had quite some difficulty in getting all the pages through at a given time. Note the page errors which I have enclosed.”

By this stage Austel was becoming more than a little concerned at Telstra’s approach to our complaints, particularly their continual use of outside solicitors. In fact, during October 1993, while Austel was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, Robin Davey, Austel’s chairman, made it clear to Ian Campbell of Telstra’s Commercial division that Austel would not be happy if Telstra’s solicitors were to be used in future COT matters. Mr Davey’s request fell on deaf ears however and, through to 28 January 1994, Telstra continued to insist that I register my complaints through Ms McBurnie.

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to Austel and to me, regarding incidents that occurred between January and August of 1993.

On 28 January 1994, during my arbitration, I received a letter from Telstra’s solicitors in response to a letter I had written, challenging their client, Telstra, for incorrectly charging me for non-connected short duration calls. Telstra’s solicitors wrote, in response to one part of my letter:

customers will be charged only for calls which are answered
unanswered calls are not charged.

In the next paragraph they refer to the malicious call trace equipment which Telstra placed on my service, without my knowledge, and which caused a lock-up on my line after each successful call was answered. This lock-up occurred after I had hung up the phone and meant that no further call could come in to my phone for the following ninety seconds.

On pages 66 and 67, at the beginning of this chapter, I relate an incident with the Daylesford Community House where Mrs Cullen described how the line was continually dead when she rang my 008 number four times on 17/8/93. Even so, I was charged for these four calls, all in the space of a single 28 second period. Since the malicious call tracing equipment was not removed from my phone line until 19/8/93, how could Mrs Cullen have been connected four times in such a short period of time? It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circumstances at any time between 26 May and 19 August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

Another incident, described on page 68, raises more, similar questions. How could sixty-seven test calls all be answered in a fifty-four minute period when my 008 account shows that some of these test calls connected within a single thirty second period? In fact, some calls came through at the rate of as many as three in a single sixty second period. Again, where were these calls diverted to?

And, finally, who would benefit from accessing my incoming calls?

CHAPTER 14

The following letter from David Hawker MP, Liberal Coalition, congratulates me for my “persistence to bring about improvements to Telecom’s country services”. Mr Hawker goes on to say that he regretted “that it was at such a high personal cost.”

In the third paragraph of another letter, this time from the Hon. David Beddall MP, then the Minister for Communications in the Labor Government, Mr Beddall states:

“Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.”

Negotiations continued as we lobbied for a commercial assessment (refer Glossary) for the members of COT, an assessment that we hoped would look at the financial losses we had all suffered because of the faulty phone systems that we had to put up with. At the same time it seemed that there was a strong possibility that a Senate Inquiry would be set up. Our hopes began to rise again.

Two Senators in particular were pushing hard for a Senate Inquiry at this time, the then Shadow Minister for Communications, Senator Richard Alston (who, at the time of writing, is the Minister for Communications) and Senator Ron Boswell. Senate Hansard (refer Glossary) records show that these Senators were assured by Telstra that the four main COT members would have their claims assessed commercially, in a specially designed, non-legalistic settlement proposal, to be called the Fast Track Settlement Proposal (FTSP - refer Glossary).

The decision for this FTSP was reached because all four main members of COT, Maureen Gillen, Ann Garms, Graham Schorer and I had suffered considerable consequential and resultant losses because of our ongoing attempts to bring the matters to the attention of the Government for many years and because of our ongoing attempts and constant work aimed at finding natural justice through Telstra, on top of the losses caused directly by faulty phones.

With the sanction of the then Labor Government, Austel arranged for an international expert to be brought to Australia to have a look at our claims. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, arrived to run tests on a number of the phones connected to the businesses belonging to various COT members.

These tests were allegedly carried out on my phone service between 4th and 9th November 1993, a period when my phone faults were particularly troublesome, as Austel were well aware.

At the conclusion of these tests BCI produced a report. Unfortunately this report was not acceptable to Austel since the BCI technicians had not tested the actual line between my business and the nearest connection to the local exchange (called the Customer Access Network or CAN). FOI document numbered A00404 to A00407 shows that Telstra’s Ian Campbell, Commercial General Manager for Australia, responded by letter to Robin Davey, Chairman of Austel, on 15 December 1993, saying:

“The conclusion to be reasonably made from these events is that Austel publicly judges the BCI report “Fails to live up to the expectations raised by the terms of reference.”

Reasonable inferences might be drawn about deficiencies in the competence, professional standing and integrity of BCI, and the competence and integrity of Telstra and myself in the conduct of the study and representation of the findings.”

In this letter, Mr Campbell goes on to discuss the COT Settlement Proposal (FTSP), saying:

“Considering the above circumstances, Telstra cannot agree to attach a copy of Austel’s letter of 9 December to the BCI report if the latter is made available to the assessor’s nominated for the COT cases.”

A hand-written note at the bottom of the last page of this letter states: “There is a multitude of inaccuracies” . This note is linked by an arrow to a reference to a letter dated 9 December 1993, from Austel’s Cliff Matherson to Telstra’s Ian Campbell. Some time later I received a copy of this 9 December letter, under FOI (numbered K47052 to K47054). Cliff Matherson’s summary, at the end of this letter, stated:

“Having regard to the above, I am of the opinion that the BCI report should not be made available to the Assessor(s) nominated for the COT cases without a copy of this letter being attached to it.”

It is quite clear however, from information I received in response to my FOI request of 18 October 1995, that Telstra did not supply a copy of Cliff Matherson’s letter to my arbitrator. This issue has not been investigated either by the Hon Richard Alston, Minister for Communication or by the TIO, even though they are both fully aware that Telstra used the BCI report to support their defence of my claims and even though the arbitrator acknowledged in his 11 May 1995 award that he had accepted the BCI report into my arbitration.

One week after Ian Campbell wrote this letter to Robin Davey, a Telstra e-mail (FOI document A00354), discusses a new tariff filing that was to be lodged on the 20 December 1993. This new tariff was to include new performance parameters, one of which committed Telstra to a 98% call completion at the individual customer level. This e-mail also referred to experiences with customer disputes and the Bell Canada International Study, commenting that:

“ ... this is a cause for concern - Telstra will not meet this 98% figure in many exchanges around Australia, particularly in country areas

Apparently Telstra were quite aware that their rural subscribers were not being properly looked after. This was born out in discussions I had with David Hawker and Austel. My complaints were obviously quite valid.

FOI document A09392 raises even more concerns regarding problems with rural exchanges. The writer of this document states:

“Parameters for Cape Bridgewater RCM have been obtained but I don’t believe them — I am attempting to check them — some of the people supplying this information live in “old Telecom”.

Clearly the parameters for Cape Bridgewater exchange posed some sort of problem for Telstra: could this have been the reason for Telstra not supplying this information in response to my FOI requests?

It is difficult to describe the anguish suffered by the four COT complainants as we continued to do battle with Telstra. This was a corporation entirely government owned at the time, an organisation that Australians were being exhorted to trust with radio and television advertisements bombarding us night and day. How could we have been treated so badly?

At about this same time Telstra commissioned the international audit company of Coopers and Lybrand to report on Telstra’s fault handling procedures, particularly when they were called on to deal with complaints like the issues raised by the COT members. Coopers & Lybrand’s report indicates that they were shocked, to say the least, at the evidence supplied by the COT cases. Telstra’s unethical management of our complaints over the years caused some serious concern to Coopers. What followed Telstra’s first reading of the Coopers report was indicative of Telstra management’s attitude to their subscribers.

On 9/11/93, Doug Campbell, Group Managing Director of Telstra wrote to Ian Campbell (no relation), also of Telstra. In this letter Doug Campbell said:

“I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, that their future in relation to Telstra may be irreparably damaged.”

These are strong words from the most senior manager below the CEO of the largest telecommunications corporation in the country; a corporation which, at that time, had a monopoly hold on the industry in Australia. This was not an empty threat but it seemed not to have the desired effect because Coopers tabled their report in the Senate and released it into the public domain with, as far as I can tell, no significant changes.

The following points have been taken directly from Coopers report.

“2.20 Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22 Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2) Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5 We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.”

With Bell Canada International and Coopers & Lybrand busy producing their individual reports on the COT allegations we four at last felt vindicated; we were not paranoid after all. Telstra really did have a case to answer.

As a result of their own investigation, Austel had come to the conclusion that there were problems in the Telstra Network and that the COT four had, for all the right reasons, been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing (and now all close to being totally broke) had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were in such a difficult financial position however, because our phone services were still not up to network standard and because I had certainly proved that my phones were not working properly, Austel’s chairman, Robin Davey, pressured Telstra into appointing a commercial loss assessor to arrive at a value for our claims. This was to be the non-legal Fast Track Settlement Process and it was to be set up so that the COT four would have prompt and speedy access to any discovery documents we might need to enable us to complete our claims as quickly as possible.

Telstra agreed to rectify any on-going phone faults before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? Again our spirits rose and we began to feel that we were getting somewhere at last. We had discussions with Robin Davey and he verbally assured us that any preparational costs we might incur would be considered as part of our losses, so long as we proved our claims.

Mr Davey would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to Mr Davey on 18 November 1993 (FOI document number R10799), pointing out that:

“ .... only the COT four are to be commercially assessed by an assessor.

For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.”

This caused us all some concern and so we turned for advice to Senator Richard Alston, then still the Shadow Minister for Communications.

We contacted Senator Alston on 22 November and this is confirmed by an internal memo from Senator Alston’s secretary, Fiona, headed “Re: Fast Track Proposal”. In this memo Fiona writes to Senator Alston:

“Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.

COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.”

Amazing as it now seems -- we never did get this advice from Senator Alston, even though we had informed his office that various members of COT were now receiving many phone calls from other unhappy Telstra customers around Australia. The faults reported by these callers seemed to indicate that problems within the Telstra network were more wide-spread than Telstra would have the Government know. Some of the callers spoke about their fears of having their phone calls bugged; others were more concerned with over-charging; some talked of suspicions of ‘organised crime’ within the ranks of the Telstra corporation and still others raised issues of the misleading conduct of some of Telstra’s senior managers. All this information was passed to Austel and to Senator Alston.

CHAPTER 15

Graham, Ann, Maureen and I signed the FTSP the following day, 23/11/93, trusting in Robin Davey’s verbal assurances that consequential losses would be included. The agreement was forwarded to Telstra’s corporate secretary. I included a letter with the agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

The four COT members felt some sense of achievement although Maureen’s health was beginning to fail. The rest of us tried to ring her as often as we could because she was not getting much support from her business partner who often seemed a bit put out when we rang Maureen to ask how she was.

The pressure on all four of us had been immense with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services, at least in Victoria.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of a poor standard of service from Telstra. Other ordinary subscribers were also writing of problems they had had with their phones, including a number of different billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believed then, and I still believe, that this was a responsible reaction to the letters I was receiving. Telstra didn’t even offer a ‘thank you’ however, leaving me with only one option: to continue to canvas the media for publicity about our fight.

Other rural subscribers wrote to various TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people, as well as the general public, were not being supplied with a level playing field when compared to our city cousins. One of these letters is particularly interesting. It came from David M Thomson & Associates Pty Ltd, Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7. They wrote:

“Re Problems with Telstra”

I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based. (refer Glossary)

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message “This number is not connected” or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25-30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”

Another letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I have also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response - a dead line.

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who also got the same noise when testing.”

Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not seem to help.

The TV stations reported that their phones had run hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and from the general public boosted our morale and gave us a bit more energy to keep going as a group. We continued to push to have all these matters addressed in the Senate.

FOI documents show that, at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering. Other FOI documents show that Telstra were not correctly reporting the true facts as they were at the end of 1993. It is also clear from still more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about our problems with phone faults.

FOI document number C04054, entitled “Cot Wrap-Up”, states, in part:

“I think it should be acknowledged these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “Look at superbly built and maintained network” stories.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter’!

A TV news program was clearly also a target in this attempt to muzzle the media. FOI document A04646 reports:

“Good news re Channel (Australian TV station ID omitted) News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phrase it was that convinced (reporter’s name omitted) not to proceed. Might have been one of ‘Jim Holmes’ pearls.”

The ‘Jim Holmes’ referred to in this e-mail was then Telstra’s Corporate Secretary; the reporter worked for the TV station referred to at the beginning of the e-mail. The identity of the TV station and reporter, clearly shown in the original e-mail, have deliberately been omitted from this book.

Again we can only wonder what it was that could convince a respected journalist to drop a story. Furthermore, if Telstra had met with the members of COT at the very beginning, listened to our complaints and then done something about them, there may never have been a need to interfere with media stories because there never would have been a Casualties of Telstra group in the first place. After all, we were only asking that Telstra rectify our phones so we could each get on with the running of our businesses in the same way that other small businesses operated.

The following document is another example of censored FOI material. This Telstra memo has some names blacked out but other documents show that Telstra’s area general manager is clearly referred to as one of the Telstra people appointed to ‘deal with the media/politicians’ regarding COT issues. Previously, on page 58, I have recounted one of the stories related to this same area general manager. As I explained then, it seems quite clear that this manager had deliberately misinformed me during a settlement process in 1992/93. Now we discover that she was to be one of only two people who were appointed to speak to the media about the COTs. Would she have misinformed the media the way she misinformed me, I wonder? And, just as worrying, why was the author of this memo so worried about ‘tripping up’

CHAPTER 16

On the 17th January 1994, Warrick Smith, then the TIO, distributed a media release. An ‘assessor’, Dr Gordon Hughes, had been commissioned to process the four COT Fast Track Settlement Proposals. What the TIO did not say was that Telstra were not abiding by the original FTSP agreement: they were not supplying us with the discovery documents (refer Glossary) we were requesting under FOI.

By this stage we had lost any chance we might have had for a Senate Inquiry into what the COT members believed was the unethical way Telstra was continuing to treat us. By late January 1994, it appeared that not only was Telstra treating us with sheer contempt but they were doing this in full view of the Senate. The COT members were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a Judicial Inquiry into the way Telstra continued to thumb their noses at the Government.

I remember feeling lost and confused, wondering who I could turn to for help; just wanting to find a way to trust someone, just one more time. Austel’s chairman, Robin Davey, was expressing anger about the delays we were suffering as we tried to gather the necessary discovery documents. By February of 1994, Senator Ron Boswell was also asking questions of Telstra in the Senate. Still the members of COT struggled to run their failing businesses and, at the same time, attempted to do battle with the colossus of Telstra and their legal advisors.

Imagine having to write to Telstra’s solicitors, to lodge my phone complaints! Was this Telstra’s way of breaking my morale? Imagine having to report a telephone fault, in writing, to a solicitor!

We learnt from the TIO that the commercial ‘assessor’, Dr Hughes, had drawn up a set of rules within which to work on our cases. Then, to add insult to injury yet again, we learned that Telstra had badgered Dr Hughes into converting the commercial assessment into an ‘arbitration’ procedure (refer Glossary). COT members registered our disagreement with this through the TIO who had been appointed as an independent administrator of the Fast Track Settlement Process. We made it very clear to Warrick Smith that the four of us were already involved in a signed and agreed commercial process and we saw no clear reason for changing that situation. We believed an arbitration process would certainly never be ‘fast-tracked’. It was bound to become legalistic and drawn out and we knew none of us had the finances to go up against Telstra’s high-powered legal team in such a process. We believed the whole idea of an arbitration had been raised simply to suit Telstra’s agenda.

Somewhere around the 6th to the 8th of February that same year, Graham Schorer had a telephone conversation with Warrick Smith. Graham wanted to discuss the reasons the COT four were rejecting the arbitration process. Our reasons were immediately dismissed. Warrick Smith used words to the effect that his prime role was as Telecommunications Ombudsman and that he had been spending much too much time focussing on his secondary role as administrator of our FTSP. He was concerned that his office had already incurred considerable expense because of this administrator role and he made it clear to Graham that Telstra had refused to reimburse those expenses. He also indicated that his office had no intention of continuing to incur expenses on our behalf. Further, he told Graham that if the COT four did not abandon their commercial agreement with Telstra then Telstra would pull out all stops with the aim of forcing us into a position where we would have to take Telstra to court to resolve our commercial losses. Telstra, the new arbitrator and the TIO were all aware that none of us had the financial resources to enter into a court case.

As if all this wasn’t shattering enough, the TIO went on to say that, if we did decide to take legal action in an attempt to compel Telstra to honour their original commercial assessment agreement then he (the TIO) would resign as administrator to the procedure. This action would have forced the conclusion to the FTSP and left us with no other alternative but to each take conventional legal action to resolve our claims.

Simply put, it seemed that the TIO had sold us out. The new assessor also seemed to be selling us out before he even got properly started. We asked to see Telstra’s preferred rules of arbitration, which had already been supplied to the TIO’s office but the TIO refused our request. We had been reassured that these rules had been drawn up independently of Telstra, by Dr Hughes and Minter Ellison, the legal counsel to the TIO’s office. We were also told that a Mr Sheldon, one of the partners in Minter Ellison, had consulted with Dr Hughes over these rules.

Whenever we asked to see a copy of these rules we were told that we should trust Dr Hughes. And so we did. In retrospect we were fools to accept such a compromise but, after struggling through the nightmare of the years leading up to this point, we were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the trickery of Telstra’s corporate power.

Even so we continued to implore the TIO to reconsider and let us continue with the original FTSP agreement. On 16 April 1994 we faxed him once again, stressing our request. Again this fell on deaf ears. By the following Thursday, 21 April 1994, we had given up and abandoned the FTSP without seeing Telstra’s preferred rules of arbitration. Later we discovered that the copy of these rules which had been supplied to the TIO’s office was actually headed “Telstra’s preferred rules of arbitration.” We simply wanted to make sure that the rules we were signing for were different to Telstra’s ‘preferred rules’: why should Telstra be allowed to dictate to us? Our concerns were of no interest to the TIO however and so, like lambs to the slaughter, we signed on the dotted line on 21 April 1994.

When I arrived back at Cape Bridgewater after signing for the new arbitration procedure I found that, while I had been away, my staff had logged two more faults on my fax line, at 2 pm and again at 2.15 pm. Nothing, it seemed, had changed.

Not only was I still suffering from all these phone faults but, along with the other members of COT, I still couldn’t access the FOI documents I needed to support my claims against Telstra because Telstra would not abide by the FOI Act. Questions about this lack of supply of FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators. The persistence of these Senators paid off for some members of COT but, unfortunately, I was not so lucky. The persistence of the Senators somehow failed to force Telstra to supply the documents I needed.

CHAPTER 17

On 26 April my son attempted to phone me from his mother’s (where he was living at the time) about his Austudy payments. According to my diary records he first tried at 12.56 but only reached an engaged signal. Document K37932 is Telstra’s fault report for that day.

This makes it quite clear that Telstra acknowledged that there were other call attempts on that day, all from 03 568 xxxx, which is my ex-wife’s phone, to my phone number, 055 267 267, which translated to my 1800 freecall number.

FOI document A19115 is a copy of my wife’s telephone account.

FOI document A19113 is a copy of my 1800 phone account.

When these two documents are compared it is easy to see that, again, Telstra charged me for calls which I did not receive and, furthermore, they charged my ex-wife for two of the calls which did not get through because my phone was registering as engaged. This is confirmed when these two documents are compared to Telstra’s own CCAS data. These documents are taken from many, many documents which I have accumulated over the years and which all prove conclusively that Telstra people were aware of the many problems my phone line suffered, over a number of years. For instance, in August 1993 I complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct out-going line, 055 267 230. This was also a fax line. People often had remarked that, after I had hung up they could still hear me moving around the office. Because of all the other problems I was dealing with at the time I didn’t pay much attention to this small fault until 26 April 1994, the same day that my son had tried to reach me by phone.

This day I phoned Cliff Matherson, one of Austel’s senior engineers, to talk about this ‘hang up’ fault. Mr Matherson suggested that he and I carry out a series of tests on my 267 230 line. His plan was that I would hang up and count out loud, say from one to ten, while he listened at his end. This first test proved that he could hear me right through to the number ten and so he suggested we try it again, but count even further this time. Still the same situation: he could hear me right through the range as I counted. Mr Matherson then suggested that I take the phone off that line and switch it with the phone which was connected to my 267 267 line (they were both exactly the same Telstra phones, model T200). I did this and then we repeated the ‘counting’ test, with exactly the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. Mr Matherson’s next suggestion was that I ring Telstra, which I duly did.

This time I spoke to Peter Gamble. I explained carefully what was happening, adding that I had experimented and found that I could count for quite a long time, up to 15 or more, and the person at the other end could still hear quite clearly. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what they would come up with this time.

So, again, I performed the same tests for Mr Gamble who advised that he would send a technician to collect the phone the very next day. Documents K00940 and K00941 (on the next two pages) show that Mr Gamble was fully aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault.

The documents on the next two pages should be read in sequence, before continuing, as both prove that Telstra were aware that phone faults in the exchange were still apparent, even while I was preparing my claim for arbitration. It should also be noted that I asked both the arbitrator and the TIO how I could access discovery documents to support the CONTINUING phone faults, when Telstra was still actually testing for these faults, even on that very day.

Communication experts have since acknowledged that these phone faults continued even after Telstra had submitted their defence of my claim. And what about the phone faults which continued after Telstra had defended their network? They have still not been addressed by the TIO, the arbitrator or Telstra.

When my Telstra account is compared with Telstra’s own data for this period it can be seen that these 15-second call hang-ups and incorrect charging were occurring from at least August 1993 right up until this phone was taken away on 27th April 1994. The phone itself was from the ‘Exicom’ series, manufactured in April 1993; the same as the phones referred to in FOI document D01026. This phone later proved to be a major player in one of the many sub-plots of this Telstra saga; it was used as part of Telstra’s defence of my claims and it was used mainly in an effort to damage my credibility. But that story comes much later.

Meanwhile, on 27th April, when Telstra phoned, at around 9 am, to arrange pick-up of the faulty phone, I had just arrived back in my office after spending the previous 12 hours on our local CFA (Country Fire Authority) fire truck fighting a large bush fire (as our local CFA records will show). I explained to the Telstra caller that I had been out from 7pm the night before and had only just arrived back, and I asked if the pick-up could be arranged for some time after 1pm so I could get some sleep. Later, in an FOI document, I found that the most important part of this conversation had been omitted from Telstra’s records: they simply stated that ‘Mr Smith was tired, and wanted to go to bed’ and went on to say that I had asked that they not disturb me until after lunch. The omission of any reference to why I was tired is just another example of how some Telstra personnel twist words to suit their own perspective.

By now I was trying to assess my situation and collate my own claim to submit to arbitration, using much of Austel’s ‘COT report’ which had just been released (in April of 1994). Even this report had needed to be revised by Robin Davey because Telstra threatened to enforce an injunction thereby tying the report up for years in a legalistic manoeuvre. Mr Davey had agreed to the amendments required by Telstra just so that the COT four could at least have access to some of the information in the report.

Austel had found a number of my claims to be proven however they were basing their conclusions on information supplied only by Telstra and it later turned out that Telstra had not given Austel the true facts regarding the age of the first exchange at Cape Bridgewater. I had hired as technical advisor, George Close, a telecommunications expert who was based in Queensland and he based his findings on Austel’s report. This meant, of course, that he also based his findings on incorrect information. According to Austel’s report, the first exchange in Cape Bridgewater was called an ARK exchange. What transpired later was that it was, in fact, an RAX exchange. The RAX was designed in the late 1940s or early 1950s, specifically for low-call-rate areas. The ARK was newer technology and was designed some 20 years later.

The first part of my claim covered the first three and a half years after I took over the camp at Cape Bridgewater (the whole claim covered a period of six and a half years in all). I later discovered that this ancient exchange had been in operation for years but George Close and I both believed, as did Austel, according to their report, that the newer ARK was in place through those years. So George assessed my situation, unknowingly working from a false base. This incorrect information downplayed the true fault loss suffered by my business. Was this incorrect information, given to Austel by Telstra, just another deceptive move aimed at hiding the true extent of my continuing phone faults?

This was beginning to look like a repeat of the Tobacco companies and their deceptive conduct over the last 20 years, hiding their true knowledge about the addictive effects of nicotine and then hiding their knowledge about the smoker’s health risks as well. Telstra was (and still is) no different really. They were fully aware that a number of their exchanges around Australia were outdated and were therefore causing enormous difficulties for their subscribers, small-business people and the general public alike. Still they hid these facts. Still it appeared that they did nothing to improve the system. For ten years Telstra have continued to charge me for calls which never connected, for RVA calls and for short duration (and therefore useless) calls. Why hasn’t the TIO’s office investigated my irrefutable evidence? After all, this evidence is supported by Telstra’s own data.

Some nine months earlier, in August of 1993, having been to Melbourne for a COT meeting, I arrived back home to be confronted by a Sheriff from the Justice Department. He had a warrant requiring payment or seizure of goods in lieu of payment. I asked if he would wait fifteen minutes while I tried to talk to the people I owed money to but he would not. A fight ensued and I threw him out of my office. Later I was charged, in the Magistrate’s Court, with assault: I appealed the court action, defended the charge successfully and saved the day (there was no conviction). The newspaper article, numbered as FOI document K01407, tells the story.

It would appear that Telstra’s FOI Unit was also interested in this situation since this copy of the newspaper article came from Telstra’s records. What this had to do with my phone problems is anyone’s guess although I have since learned that Telstra were accumulating a lot of personal information about me in a file containing details of who rang me, when they rang and from where as well as when my staff left my business. Apparently they were not only interested in my complaints about phone faults.

And so I battled on. A law student to assist would have been a God send. The mountain of documents continued to grow and threatened to engulf me entirely while Telstra’s multiplying legal team stood by, waiting to pounce on the slightest crack they could manufacture in the claim documents I submitted. The knowledge that every document I sent would be poured over by highly qualified legal experts didn’t exactly help to keep my confidence up. Finally I sought out the TIO and his legal counsel, explaining my lack of confidence and re-iterating Robin Davey’s reason for first asking for a non-legalistic hearing for us. Mr Davey had always believed this would be the best and fairest way for us to present our cases.

The TIO could only console me by telling me to ‘do the best you can’. The TIO’s legal counsel re-assured me that the new process was fair and advised me to ‘give it a go’. And so I had no choice but to seek help from professionals in the field. I began by approaching a local firm of loss assessors in nearby Mt Gambier, just over the border in South Australia, about 110 kms away. This firm was headed by Mr Phil McDonough, an agent for NZ Insurance. When I first phoned I spoke to Mr McDonough and explained who I was, gave my location and what I hoped to have help with. There was quite a long pause before Mr McDonough asked me if I had suffered some storm damage at the camp about four or five years earlier. I remembered that I had. It turned out that Mr McDonough had acted as loss assessor back then and remembered that he had had a lot of trouble contacting me by phone and had finally resorted to writing to me to let me know they were coming to assess the storm damage.

After discussing my current position in more detail Mr McDonough decided that my problems were outside their area of expertise. Imagine, Telstra and the TIO expected me to prepare my claim alone and a professional loss assessor believed the case was too complicated for him to take on. Here I was, a marine cook, a chef, and the TIO and his legal counsel could only tell me to ‘do the best you can’!

I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

It was at this stage that I approached George Close in Queensland. George was already working on Ann Garms’s case and she had suggested I talk to him. It was just a shame that he was so far away from me geographically as this, of course, complicated everything just that bit more. When Telstra discovered that we had secured George’s help, they approached him, offering work. It would seem that they were still trying to close off all avenues for the COTs. George, however, at 70 years of age, was having none of that. He made it quite clear that, if he took up Telstra’s offer, it would create a definite conflict of interest and severely disadvantage the COT members and so, bless his beautiful heart, he declined their offer. It would seem that at least one Australian was prepared to put himself on the line and face up to Telstra’s bottomless financial public purse.

Finally, after more searching, I located a Loss Assessor company, Freemans, also 1,200 kilometres away on the Sunshine Coast in Queensland and then I spoke with an ex-National Crime Authority detective, Garry Ellicott. Garry agreed to help me on the understanding that he would only be paid if and when I won my claim. The only payment he expected along the way would be for re-imbursement of out-of-pocket travel expenses so he could come to Cape Bridgewater.

Once all these professionals were in place I then had to work out how to raise the finances to bring Garry Ellicott to the camp. With my business still in tatters I was caught like a butterfly in a web: the consequential losses resulting from the poor phone service meant that my finances were getting worse and worse but I badly needed money to keep up the fight. The only alternative was bankruptcy and I was determined not to lose the camp because of Telstra’s skulduggery.

Government ministers, Coopers & Lybrand and Austel were all agreeing that the COT cases were right and Telstra was wrong. Even Telstra themselves, in a letter to the Minister for Communication, admitted that my assumptions were correct, but we still had our backs against the wall. We were still not getting any financial assistance from anywhere and were left to scratch around to raise the funds to organise our claims, claims that most loss assessors would not even attempt to touch.

I raised $280.00 by selling two of the camp’s canoes and, with nothing saleable left, borrowed another $1,000 from Peter Turner of the Australian Singles Club who took an advance on his credit card because all his money was tied up in New Zealand.

At about this time 900 to 1,000 discovery documents arrived from Telstra, in response to one of my FOI requests. “Wonderful,” I thought, “now we are getting somewhere.” But, of course, I was wrong. Telstra may well have supplied the documents but, according to the FOI act, they were required to supply them in some sort of order, preferably chronological and definitely with some sort of numbering system in place. Not only were all these documents supplied without any numbering system, they were also not even supplied in chronological order of any sort. Further, there was no explanation of what the documents actually represented. Many were unreadable with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. Below is one of many examples of these heavily censored documents from my first FOI release. How could I support my claim with material like this?

If I had known, back on 21st April 1994, when I was forced, under duress, to abandon the commercial assessment process and sign for arbitration, that Garry Ellicott’s fees would mount to over $50,000; that George Close’s fees would come to more than $25,000; that Derek Ryan, my forensic accountant; would amass fees of more than $50,000; that typing would cost me more than $25,000 and that I would also have to bear another $40,000 in miscellaneous fees, I would never have agreed to the arbitration, even if Warrick Smith had held two guns to my head. But I couldn’t know this in advance and I did not have any legal representation on the day so there was no-one who could warn me of what was to come. As a lay person I did not know that, if I later wanted to challenge the decision made by the arbitrator, I would have to take the matter to the Supreme Court, even if I could prove that the arbitrator had acted in concert with another. What chance did I have?

Even the TIO’s suggestion that we would have nowhere to go if we didn’t sign for arbitration, except for massively expensive court cases, would not have made Ann, Graham and me agree to sign even if we had know what was to come. Not only have we had to bear enormous financial burdens, but we have also all had to suffer through failing health. I know blackmail is a strong word to use when talking about an ombudsman but that is certainly how it felt to the members of COT. The TIO’s comments sounded quite clearly like a ‘take it or leave it’ threat because the his office is funded by the telecommunications companies, Telstra included, unlike the office of the other ombudsman, which is funded by the Government.

The following two paragraphs are taken from FOI document R00037 (a fax from Telstra’s Corporate Secretary). Clearly the members of COT were not intended to have to bear the burden of the costs of assessment.

CHAPTER 18

Anyway, I managed to raise enough cash to bring Garry Ellicott to the camp for a couple of days to observe what was going on with the phones. During his stay he noted short duration calls, dead lines and problems trying to send faxes to George Close. In fact it was Garry who commented that he believed I was being watched. His background as bodyguard for the United States President, Jimmy Carter, during his visit to Australia, gave him some experience in this area. He was sure I was being kept undersome sort of surveillance and FOI documents (see document K01006) show that Telstra were aware of my movements, and the movements of my staff.

Document K01006 is dated Thursday 7 April 1994, at 2.05 pm and signed by Bruce Pendlebury of Telstra. This document raises two issues. Firstly this date falls during the time I was involved in the Austel designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least. Secondly, this document refers to a time when I would be away from my business. Mr Pendlebury states (note that NRR in this memo refers to ‘Not Receiving Rings’):

“David, Mr Alan Smith is absent from his premises from 5/8/94 - 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Now, it is clear that Mr Pendlebury knew, in April of 1994, that I planned to be away later that year, in August. In other words he knew of my movements, 4 months in advance. Telstra have never been able to explain how he came by this information. Further, Mr Pendlebury has also stated that he knew that I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone. He also knew when that conversation took place. Mr Pendlebury insists that I told him about this conversation but this is not true. I told him no such thing. Again, Telstra have never been able to find a convincing explanation for Mr Pendlebury having this information. Obviously Telstra were still listening to my private calls, even though I was then involved in litigation with them and their lawyers. The following FOI document, not numbered, clearly shows that the writer knew where this caller usually rang from even though, on this occasion, the caller was phoning from a different number, “somewhere near Adelaide”. How could the writer have this information, if someone hadn’t listened to this call to find out who the caller was?

Senator Richard Alston, Minister for Communications; the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private calls were being ‘bugged’. I have had no response from any of them, and I have now been waiting for four years.

Listening to private calls is appalling enough but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25/2/94 states that Senator Alston, then Shadow Minister for Communications, questioned Mr Robin Davey, Austel’s Chairman. Senator Alston asked:

“Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?”

FOI document K00701, dated 14 January 1994, headed “Voice Monitoring of Priority, Investigation Services” states:

“Described below are the details of any voice monitoring which has been carried out on the 3 Priority Case Investigation services in Country Vic/Tas”.

This document goes on to say that calls to the Cape Bridgewater Holiday Camp had been voice monitored at the Portland exchange where an alarm bell rang when calls came through for the Camp. Further proof that Telstra personnel listened to my calls over a long period.

FOI document A10148, a copy of a letter dated 10/2/94 from Austel’s General Manager of Customer Affairs to Telstra’s Group General Manager in charge of the COT arbitrations, confirms the visit by the Federal Police. In this letter Austel notes:

“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases

Another interesting letter which I received under FOI was dated 28 January 1994 (within the COT litigation period) and was from none other than the Chairman of the Board of Telstra, Mr David Hoare. Mr Hoare wrote to the Hon. Michael Lee, then the Minister for Communications, acknowledging that the Board were aware that Telstra technicians had listened to customers’ conversations. Mr Hoare wrote:

“Thank you for your letter of 20 January 1994 requesting a report on allegations regarding voice monitoring.

I have attached for your consideration a full report on Telstra’s inquiries into this matter and the actions proposed to prevent its recurrence.”

Other documents received by various members of COT also confirm this ‘voice monitoring’. These documents include one titled “Corporate & Govt. Major Customer Group 19/8/92”. This document is included on the first page of Chapter 9. It includes information showing that the document relates to the Tivoli Theatre Restaurant (which was owned and run by Ann Garms in Brisbane) and, in relation to ‘voice monitoring’, it is interesting to again note the information at point 19:

“Line 2 NDT NRR SUSPECT SABOTAGE ?????”

On the last few lines of this same document are the comments (at points 1, 2 and 3):

“10/03/92 ....... Tests looped .... SK ... maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly????????”

I found myself wondering; was this an internal memo from Australia’s largest telecommunications company I was reading, or was it a page torn from a spy novel?

FOI document B00474 is a copy of a Telstra minute which also refers to Ann Garms and the Tivoli Restaurant. In relation to the Federal Police’s investigation it is interesting to note the following points and questions raised in this document:

“John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services......... Why was Federal police stopped from investigating the Tivoli Case ........... Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years.

Why was AA of Protective Services investigated ? and investigation stopped short of his bank account.

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart ............”

CHAPTER 19

PRESENTATION OF MY CLAIM

Telstra have acknowledged that during May of 1994, I continued to report what is commonly referred to in communication circles as R00 faults, ie. the phone only rings once or twice, then nothing. Telstra officials tried to play down these faults as me not understanding the operation of my new fax machine (in other words, they continued to blame the customer’s equipment, referred to as CPE or customer premises equipment), even after Coopers & Lybrand’s report of November 1993 had advised that this practice was not acceptable.

Austel also found that the R00 faults were continuing. In their COT report, under the heading “Telstra’s fault reporting/recording & monitoring/testing system & procedures” they said:

“Network investigations had been working on the problem for an extended period of time with little success. This involvement has been escalated in the past three months — this fault was in connection to cut-offs which had also happened in the past.”

At point 6.87 in this same Austel report is the comment:

“It may be concluded from the above extracts from internal Telstra documents that Telstra knew for quite some time of general problems in its network which were affecting customers and was unable to identify the cause of those problems.

Again, at point 7.39 (page 167), Austel reported:

“AXE network fault — this is Portland’s main telephone exchange (AXE).

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) Switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party — for example:

ie. “I spoke to Alan Smith ..... he received one burst of ring at 1.15 pm and 5.05 pm yesterday. When he picked up the receiver he heard dial tone. This problem occurs intermittently through-out the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.”

And again, on page 168, Chapter 7, titled “Customer Complaint Form 25 March 1993”:

“Visited Mr Smith 6/04 to do end to end test calls. The first call in prior to me starting testing gave two bursts of ring and when the phone was lifted there was only dial tone. The receptionist said it was the 2nd call that morning with the same result. She also stated several people had commented they receive busy tone when they rang the previous evening when she knew the phone was free.”

These statements are even more alarming when you realise that they were collected from Telstra’s own archives and records, by Austel officials, paid by the Australian Government, and yet still some Telstra officials were prepared to later sign Statutory Declarations covering information they knew to be untrue. This corporate culture at the management level of Telstra was what put the members of COT in the positions they found themselves in: fighting an unfair arbitration simply because we challenged the misleading and deceptive conduct of Telstra managers. Simply because we were seeking the truth. Simply because we were prepared to stand up for our rights as Australian citizens; our rights to a telephone system which was comparable to that of our competitors.

During May 1994 Garry Ellicott and I spent five nights toiling over the pile of Telstra discovery documents in an attempt to decipher what they all meant. By this time Garry was also experiencing phone problems similar to those problems I had been suffering from for all these years. I found some comfort in having someone of Garry’s standing staying with me, even if it was for only a short time. His background in the police force and the NCA was quietly reassuring. When he left to return to his office in Queensland he took some of the FOI documents with him for further examination.

While Garry was visiting, I discovered I could not locate a number of important camp documents. Missing were exercise books in which I kept official booking records, books which I needed to support those few bookings that were still managing to get through; a number of bank statements and my bank pay-in books for 1992/93. Also missing were two diaries which were keepsakes because they were in my ex-wife’s handwriting (from the two years she spent at Cape Bridgewater before our marriage broke up). These diaries covered the period of 1988 to 1989 and they have never been seen since. I was left with my rough diaries, and wall planners which I used to register bookings as they came in and before they were registered in the official exercise books. This information is covered in more detail in the description of an oral arbitration hearing which occurred later, on 11th October 1994.

Because all these records went missing, I was hard pressed to produce full and correct financial statements for my financial advisor, Derek Ryan. In fact, I had to resort almost to guesswork, based on information from my wall planner and diary which was compared to those bank statements I still had. Where these missing records really went is anybody’s guess.

Graham Schorer found himself in a similar position. A concrete pillar at the side of his office was smashed so thieves could gain access to his business. Interestingly, the only things stolen were documents.

My stress levels rose enormously over this period. Trying to produce a claim in some readable form when the story was so very complex, and without much actual technical knowledge was extremely difficult. My phone and fax lines became life-lines to Garry Ellicott, my technical advisor in Queensland. By this time I was not only relying on the phone lines, I was also, unfortunately, relying more and more on the Scotch bottle, consuming up to 3 or 4 scotches a night in a vain attempt to calm my nerves. My private life was a mess with my partner in Ballarat and I turned, for a time, to another fine lady for comfort. It is interesting to note that soon after she befriended me she also began to experience problems with her business phones and her customers started complaining that her phone was continually engaged. FOI documents indicate that Telstra investigated this.

Often I was aware of a particular car sitting on the road above my house. Were they admiring the picturesque view of Cape Bridgewater Bay, I wondered, or were they watching me? Even though I was aware that my mind may well have been playing tricks on me, this was certainly a worry.

Finally, in the early hours of one morning, in July or August of 1992, I confronted an intruder sitting in a car among trees on my property. I was rather agitated, as anyone would be at finding a stranger on their property, and I was also rather loud, but the intruder actually offered what seemed, at the time, a plausible excuse so I let him go. I lodged a call with the Portland police and, the next morning, the local sergeant of police, Frank Zeigler, who later became Mayor of Portland, visited my office with a constable, to take some notes about the incident. During this interview I mentioned in passing the phone call I had which was ‘accidentally’ switched through to Telstra’s John Stanton instead of the ‘Four Corners’ Sydney office, and raised with Frank my belief that my phones were being bugged, as well as my property being watched.

Some days later Frank came again with information about the ‘intruder’ and his apparently sensible reason for being on my property. Frank had made inquiries in both Victoria and over the South Australian border, in Mt Gambier but the information he had acquired did not support the reason I had been given in any way.

While he was carrying out this inquiry Frank also looked into my suggestion that my phones were being bugged but he could not clarify how or why my call had been transferred to the wrong office in Sydney. Much later, when I began to sort through the confusion of documents which were sent to me from Telstra under FOI, and began to discover Telstra e-mails and other records which showed that they knew, on a daily basis, who I had telephoned and when; when my staff left my business and when I was away, I could only shudder. What on earth had I done to deserve such treatment?

Even the local Telstra technicians seemed to be involved in this process: in one FOI document (K03273), an internal Telstra memo, the unidentified writer offers to supply a list of phone numbers which I had rung (I believe this was around the time of the ‘briefcase saga’ incident which is described in Chapter 11). Why were Telstra employees happy to distribute this private information so freely?

Attached to this document was another which indicated that I was the ‘customer’ referred to. All this seems to indicate that phone calls I had made to a number of clients and friends were being circulated to various people, courtesy of my local telephone exchange. I had previously learned that the writer of this fax was listening in to my private conversations and, when I confronted him with this information, he insisted that he was not the only technician in Portland listening in.

Other FOI documents show that other Telstra officials were checking up on who I rang, and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. As I uncovered more and more of this ‘spying’ I became more and more agitated. By May/June of 1994, as I battled on with the preparation of my claim, I was sinking deeper and deeper into depression.

Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration. Not once did I receive a reply from the TIO’s office regarding this particular matter. And still the phone and fax problems continued. Since the problems were still occurring I was in somewhat of a bind. Legally, Telstra had 30 days to respond to any FOI request I lodged so how could I provide evidence to the arbitration regarding faults that only happened the day before? The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help. The TIO would only reiterate that I should lodge my claim to the best of my ability.

Garry Ellicott attempted to ring me on 27 May 1994, using my 1800 freecall service (this can be confirmed from Telstra’s own records). Finally he got through at 7.59 pm. I was at screaming point when I discovered he had tried at 7.51 pm and again at 7.55 pm, reaching a recorded voice announcement both times. On both occasions he was told that my number was not connected. When Garry rang Telstra fault centre to complain about these voice messages the operator told him that she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably rather rude. “How” he asked, “can the customer complain if he doesn’t even know that I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?”

When my telephone account for this period arrived I was again stunned to see that I had been charged for both calls. The 7.51 pm call was charged at 76 cents and the 7.55 pm call was charged at 30 cents.

The Austel COT report talks about Telstra’s fault reporting, recording and monitoring system and procedures regarding these recorded voice announcements on page 125 at point 6.53:

“Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances.”

This is a report compiled by an official, government funded body and yet Telstra continued to tell the public that these faults did not exist, even though many of these non-connected calls were being charged out to customers.

By this stage I had been fighting for 6½ years to have these matters addressed and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request and each request would take 30 days to bring results. No sooner had I faxed information to the arbitrator detailing yesterday’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. Many times I sobbed in frustration. No-one would listen or, if they did hear me, they apparently didn’t care. Or was Telstra playing some sort of cat and mouse game with me?

On a number of occasions during 1994 I was interviewed by the Australian Federal Police in relation to my problems with Telstra and my arbitration. On the following page is a copy of the first page of the transcript of one of these interviews together with a copy of part of page 7 of this same interview. This was the third interview and I answered, in all, more than ninety-six different questions. It was clear that the Federal Police were very concerned at the documentation I had provided for them. In particular they were alarmed by the document shown on page 103 (Chapter 18). The police were asking: How could a caller, who usually called from this number, be identified if he called from another number, apparently somewhere in Adelaide?

During this third interview, Constable Dahlstrom of the Federal Police stated (question 81):

“But it does identify the fact that you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it.”

Clearly Telstra had provided the Federal Police with evidence supporting this ‘live monitoring’. In other words, Telstra had admitted to listening to my private and business telephone conversations “for a period of time”.

If the Federal Police, Telstra or the Government had provided me with answers to these mounting questions as they arose, I would not still be searching for those answers today.

CHAPTER 20

During one of my more severe bouts of depression I re-read Austel’s COT report and stumbled on information I had missed before. This information related to the Bell Canada International testing and Telstra NEAT testing which had been carried out in November of 1993. In particular it related to Bell Canada’s testing procedures. Page 157 of the Austel report shows that the NEAT testing was carried out by Telstra between 8 am and 10 pm (0800 hours and 2200 hours) between 28th October and 8th November of 1993, to the exchange test number at Cape Bridgewater (055 267 211). The BCI test report, dated 10 November 1993, shows that their testing took place on the same dates and at the same times, except for 9 November when there was apparently no NEAT testing, but when BCI stated that they carried out some of their tests.

Now, each NEAT test takes up to 100 seconds and, while it is occurring, no other test of any kind can take place. Obviously the BCI testing could not and did not take place between 28 October and 8 November, as it appears in the BCI Addendum Report on Cape Bridgewater however, just for fun, let us assume that somehow all these tests could have been performed at the same time. The BCI tests needed 15 seconds between each call to reset the system, otherwise the second call would get a false engaged signal and, at the same time the NEAT tests took up to 100 seconds each. When I examined the test reports from both Telstra and BCI, it was glaringly apparent that there wasn’t enough time between 8 am and 10 pm to fit in anywhere near all the calls that were listed.

Below is a copy of two sections from the BCI report showing calls made to phone number 055-267-211, the same number in the table on the previous page. These two tables indicate that a total of 1675 + 328 calls were made from two separate locations (Richmond from 428-8974 and South Yarra from 03-867-1234), over approximately the same time period without clashing. This, of course is impossible

Telstra later used parts of the BCI report to prove that their network was operating up to expected standards. The BCI report was even released to the media, as well as being given to Parliament. But it was obviously falsified because the test calls simply couldn’t possibly have been made in the time frame recorded.

Around June 1994 I challenged Telstra to prove that I was wrong in my allegations about the inaccuracies of the BCI report. I had found a copy of a Telstra e-mail (FOI document number A05254), from a Greg Newbold to a number of different Telstra officials including a Ted Benjamin whose name often popped up in documents that I was finding. This e-mail was very significant in relation to the BCI report debacle. Mr Newbold’s e-mail said:

“Peter Sekuless and I have prepared a draft news release; a one-page media aide for Ian Campbell plus the pre-emptive media strategy itself.

Am now raising with Sekuless the merits/demerits of holding back the BCI info for a “cleansing” program immediately after the mess of Coopers. My thinking is that it would draw the focus from the Coopers stuff and on to our network that works.

Greg”

Then I came across another interesting document. This was an un-dated Telstra minute entitled “Grade of Service Complaint: Mr Alan Smith - 055 267 267. File HA. Ac4/1/18”. In the 6th paragraph of this document is the statement:

“Congestion between Cape Bridgewater and Portland had been prevalent as only five junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland RAX 104.”

RAX and RCM refer to different types of Telstra exchanges (refer Glossary).

Once I had these two documents in front of me I reached for the Austel COT report and there, on page 165, at point 7.33, I found:

“Telstra’s more recent assessment of the effect of the Cape Bridgewater RCM fault on Mr Smith’s service not only conflicts with the contemporaneous report quoted in paragraph 7.31 above, but also does not accord with Telstra’s contemporaneous GAPS record for September 1992 which shows a significantly higher complaint rate of ‘call drop out’ and ‘no ring received’ for customers who were reliant on the defective plant than those dependent on the remainder of the Cape Bridgewater RCM.”

It was no wonder that I was confused. Even the experts were obviously confused. Was FOI document A05254 from Greg Newbold to Ted Benjamin proof of an attempt to ‘cleanse’ an international test report? I struggled to understand. And still my fax line gave trouble. And still the phones played up. I sat and wrote and hoped some of the information I was sending to my advisors and to the arbitrator was actually getting through. The following quotes from two separate government documents demonstrate the problems the fax line was creating:

The first document, dated February 26, 1994, was from Fay Hoithuysen of the Telecommunication Policy Division of the office of the Hon. Michael Lee, MP. This letter said, in part:

“Attached are copies of correspondence received by the Hon. Michael Lee MP, from Alan Smith, outlining FURTHER (my emphasis) difficulties he is having with his telephone and facsimile service.”

The other document, dated 10 June 1994, was from Austel to Telstra’s Group Manager. This document said, in part:

“Mr Smith at Cape Bridgewater continues to express concern about his ability to receive and send facsimiles.”

Austel continued to be concerned because I was regularly contacting their John MacMahon and Bruce Mathews with ongoing evidence of incorrect charging to my 1800 account. When I compared my 1800 accounts to Telstra CCAS and ELMI data (refer Glossary), it was easy to see that I was being incorrectly charged for calls which never connected. I was also forwarding to Austel evidence of numerous pages of my faxes which came out at the receiver’s end as blank pages. And, of course, Telstra charged me for these as if the recipient had received all the information that was NOT on the pages.

As one example of these problems it is interesting to look at what happened the day after I had agreed to abandon the original commercial agreement and sign for arbitration. By this stage in the process I had already discovered this ‘blank fax page’ problem and I had also become aware that these blank pages often had a strange small symbol at the top of each page; sometimes on the left, sometimes on the right. Each of these pages appeared on my Telstra account as taking minutes to transmit so I decided to time the sending of a blank page. When I finally got the fax to work properly, a blank page took only 10 to 15 seconds to go through. What was even more alarming was that these ‘lost’ faxes were being sent either to my legal advisors or my accountant, or to someone else involved in my commercial assessment process. What did this strange little symbols mean, I wondered?

On 22 April 1994 I sent three separate faxes to Austel. These were copies of my billing records for the 1800 service, showing comparisons with customers’ statements regarding the calls they had made to my number and proving that the account was incorrect. Now, I had run my own tests with sending a complex document like a Telstra account and I knew that each page would take about 1.45 to 2.40 minutes to go through.

Although I have asked again and again, in writing and through various legal processes, I have never received an answer to my questions regarding why these pages should arrive at the other end as blank pages, except for the unexplained symbol? In one instance I sent similar documents to my accountant. When his fax journal print-out was checked against my Telstra accounts they both showed the same amount of excessive time to send and receive the documents, even though they arrived blank.

I told my arbitrator I believed that I was losing faxes in the system somewhere and that he was therefore not receiving everything I was sending to him. In particular I raised one instance, on 23 May 1994. In this case Telstra told the arbitrator that the problem had occurred because his fax was busy when my fax was attempting to get through and so my fax simply didn’t go. Whatever happened to my fax hearing a busy signal and trying again? And if my fax reached a busy signal more than once and so gave up trying to send, why was I charged for the call? In fact, even though my phone account showed that, on this day, I was charged for seven non-connected calls to the arbitrator’s office, and even though Telstra has since acknowledged this (in camera), still the arbitrator was not interested enough to investigate.

By this stage I began to believe that the whole arbitration had been orchestrated by Telstra simply to thwart an investigation into their questionable corporate conduct. Those discovery documents that did reach me were coming in bits and pieces, small numbers at a time. I was being drip-fed information in a further attempt to disadvantage the preparation of my claim.

Among the material that was being drip-fed to me I found FOI document K01489 (appendix 5). This Telecom fax indicates quite clearly that Telstra were well aware of the ‘blank fax’ problem and records (last paragraph) their experience with unexplained oddities when testing, particularly the receipt of blank pages which did not even have the sending identification stamp across the top. How many of these unidentified pages did the arbitrator’s office receive when I was attempting to send important claim documents to the arbitrator? And, what would the arbitrator’s office have done with blank sheets? They would have had no way of knowing where the fax had originated so there would have been no way they could let the sender (whoever that might be) know of the problem. Over the space of three years I had three different fax machines which all suffered from this same fault. It seems quite clear that the fault must have been in Telstra’s network and yet still the TIO will not investigate.

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by 11 May 1995. My home account was another $2,000. What a way for an Australian citizen to have to work in an attempt to prepare a claim against a corporation armed with lawyers and staff at their finger tips. In fact, by now, Telstra had set up a special office in their solicitor’s building, just to deal with the COT arbitrations, while the claimants struggled to run the day to day affairs of their respective businesses at the same time that they struggled to prepare their claims, mostly without legal support.

In 1996 Telstra actually admitted that the COT arbitrations had, up to then, cost Telstra something in the vicinity of at least $18 million. All this just to fight a small group of small-business people who were only looking for Australian justice!

Back in June of 1994 however, I asked the arbitrator for extra time to prepare my claim. He allowed only one extra week and yet, as the records show, Telstra were allowed an extra 72 days on top of the original extra 6 months time already given to them by the arbitrator. Did Telstra deliberately delay supply of discovery documents to give themselves more time to prepare their defence? Or did they delay supply to give their defence unit more time to go over the discovery documents before my advisors saw them? By this time, why hadn’t the TIO contacted the Minister for Communications and had Telstra pulled into line? How, in the name of justice, were the members of COT ever going to be able to support the claims they were making if Telstra would not provide the discovery documents the COTs were asking for under FOI?

A Telstra representative was in the arbitrator’s office when Graham Schorer, COT spokesperson, and I presented the arbitrator with my interim claim documents on 15 June 1994. This interim claim material was taken away by Telstra’s defence counsel, Paul Rumble. Even though the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, they did not present that defence until 12 December 1994, six months later. Why did the arbitrator allow Telstra’s defence unit to have access to my interim claim documents when he was well aware that I was still waiting for more discovery documents to come from Telstra, so I could complete my whole submission?

At the same time Graham Schorer contacted the Commonwealth Ombudsman’s Office in Canberra to ask if they would investigate why Telstra would not supply the COT members with their discovery documents. These delays were severely disadvantaging all the COT members: the longer we were kept waiting, the longer our advisors and researchers were kept waiting and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Personally, I began to wonder if Telstra weren’t working to a plan — a plan to simply send me broke before the arbitration was ever settled.

CHAPTER 21

Just by chance, the American movie “Class Action” was released on video while I was preparing my claim. This was a story about a pharmaceutical company that knew about side-effects caused by one of its drugs, but continued to sell the drug anyway. A report had been commissioned by the company and the chemist preparing the report found a flaw in the production of the drug. Now, if my memory serves me right, the parent company chose to ‘lose’ the report rather than spend the money to correct the flaw. What attracted me to this story at the time was the long and drawn out process undertaken by the pharmaceutical company when they released discovery documents to the lawyer representing a group of suffering patients. In the end, the company swamped the lawyer with thousands and thousands of documents at the very last minute so that the lawyer had only a short time to find the missing report. According to the movie, this process of burying important documents amongst numerous irrelevant papers is called ‘dumping’. Shades of Telstra versus COT here!

In my case, another COT member located, among her FOI documents, one of the reports I needed to support my claims regarding rural phone faults: this report had not been forwarded to me by Telstra during my preparation time, when it would have been very useful. This was a report titled “Can We Fix The CAN” . ‘CAN’ stands for ‘Customer Access Network’ which is the line from the exchange to the customer’s premises. This report highlighted numerous alarming facts that had to come to Telstra’s attention during their testing of the CAN. This is the last contact point where a call can be lost but calls can be lost at this point without any faults registering at the exchange end. Even so, when Bell Canada International carried out their original tests in my case they didn’t test the CAN at all. If I had received this report when I first began to prepare my claim, or even towards the end of the preparation of my claim, I could have raised with the arbitrator many more issues which were never addressed — including instances where a number of other rural Telstra customers were severely disadvantaged due to the ‘poor’ CAN.

The very first page of this ‘CAN’ report seems to indicate that Telstra certainly weren’t playing fair with the members of COT in any way and, like the movie, Telstra elected to ‘dump’ approximately 22,000 discovery documents on me (yes, twenty-two thousand!), eleven days after they had submitted their defence even though they were well aware that I had only one month after the lodgment of their defence in which to reply. This meant that I had only just over two weeks to sort through thousands and thousands of pages of information to find the ‘missing link’ which would support my case — evidence which would also prove that Bell Canada didn’t test my phone service as they stated they had in their report; a report which was then used by Telstra to support their defence of my claim. It was Christmas Eve, the busiest period for my business and, with all these documents in front of me, I was lost to know where to even start looking.

PLEASE READ THE DOCUMENT – “CAN WE FIX THE CAN” REPRODUCED ON THE NEXT PAGE, BEFORE PROCEEDING.

IT IS INTERESTING TO NOTE THE PROBLEMS

ACKNOWLEDGED BY TELSTRA IN RURAL AUSTRALIA

Over Christmas, twelve months after I had originally asked for documents from Telstra, I ploughed through what I could, uncovering (too late) a number of documents which would have been most useful to my technical advisor, and to me, when we were preparing my interim claim. Again I asked myself, did Telstra deliberately withhold this information? The arbitrator had a charter, as the ‘judge’ in this matter, to facilitate provision of requested documents but even though I continually asked him to do this for me, none of my requests were fulfilled. I believe he never passed on any of my requests but, at the same time, he directed me to provide some 40 extra documents and numerous pages of attachments and further particulars which Telstra had requested through the arbitrator. These requests to me were made under the same discovery process I had used to request documents from Telstra. I complied on every single occasion, incurring costs that ran into thousands of dollars but, in return, I received nothing from the arbitrator. At the same time I began to feel more and more concerned that something was very wrong with this whole process. Were Telstra and their highly paid lawyers deliberately setting out to destroy me financially before I had even finished my submission?

An oral hearing had been convened on 11 October 1994, under the rules of the arbitration. These rules allowed me to have legal representation if Telstra had legal representation but where would I find the money to pay a lawyer, particularly a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? By this stage I had discovered that at least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another. This meant that all 43 of those companies were not available to me or to any of the COT members because they would be caught in a conflict of interest situation if they took up our cases. In the August before this oral hearing, already five months into the arbitration process, I had also been informed by the TIO, who was acting as administrator to the arbitration, that the arbitrator himself was a senior partner in a legal firm which was also working for Telstra at the same time. Although I raised the issue of conflict of interest, the TIO disagreed, saying that I should just confirm, in writing, that I had been informed of this situation. What could I do? By this time I had run up bills with advisors and secretarial assistants to the tune of $150,000. How could I then demand a new arbitrator be appointed, only to have to start the whole process over again? Obviously the administrator’s approach was five months too late since I had already submitted my interim claim two months before he made his announcement about the arbitrator. I have since been advised that, even today, the arbitrator continues to work as a partner in a legal firm which has large contracts with Telstra.

At that stage though, I felt I had no choice but to continue with the arbitration procedure and no choice but to participate in the oral hearing. Now, the arbitration rules stated that there were to be no lawyers at oral hearings unless both parties had legal representation and the arbitrator advised me that Telstra would not have a lawyer with them so I went to the meeting believing that this would, more or less, be a meeting of equals. I could not know in advance how wrong I was — obviously the rules can be flaunted if you have enough power.

The drive from Cape Bridgewater to Melbourne took five hours and, since the meeting was set to start at 10 am, I set out at 4 am to allow for unforseen delays along the way so, by the time the meeting actually started, I was already exhausted. What I was not ready for was the sight of two of Telstra’s top executives on Telstra’s side of the table, both men with legal training. And, not only did Telstra have these two legal minds on their side, they also had two representatives from Ferrier Hodgson Corporate Advisory, the independent financial advisors to the arbitration. Again I was in the position of a David up against the Goliath of Telstra, with no-one at all to support me.

During this hearing I produced four exercise books of records which I asked to have accepted into the procedure. These exercise books contained the names and contact information of clients who had not been able to reach my business by phone. This was important information, proving as it did that I had not been able to set up the over-40s singles club I had advertised, because of the phone problems. I had not submitted these books before, as part of my claim, because, as I had explained to the arbitrator, the information had been given to me in confidence. I hoped that, by submitting them directly into the care of the arbitrator, the sensitive information contained in them would be secure.

On the day, however, Telstra insisted that the information was not relevant and should therefore not be accepted into evidence. The arbitrator went with Telstra’s suggestion and I was not allowed to submit the four books, even though the information they contained proved conclusively that not only had I lost business calls as a direct result of a faulty phone service but I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going. It was at this point that I finally admitted to myself that the arbitrator was not acting impartially.

By the time Telstra lodged their defence of my claim, on 12 December 1994, I had been fighting for justice for 6½ years. Fighting a losing battle, not because of anything I had done, but simply because I chose to set up business in a rural hamlet which Telstra’s senior board members saw no benefit in upgrading. In this time I had lost a wife of 20 years, who had trusted my judgement that I could create a successful business at Cape Bridgewater and my next partner had finished up in hospital after also trusting my judgement. The oral hearing made me realise that I was truly on my own in this: even the arbitrator couldn’t be relied on to be independent. The other COT members had not been at the oral hearing and so I warned them of what I had discovered but they couldn’t really comprehend the gravity of the situation for us all. As it turned out, my gut feelings were correct: we had been conned by the TIO’s office. The Senate had also been conned by the TIO’s office as it turned out: the TIO’s office had also assured them that this would be a non-legalistic process.

Between 11 October 1994, the day of the oral hearing, and 12 December 1994, the day Telstra lodged their defence of my claim, I continued to search through all the claim material I now had, looking for something to help me improve my position, hoping to find the illusive discovery documents I needed. At the same time I became even more aware of what an enormous toll this was having on my life as well as my business. I was suffering from frequent dizzy spells and stress related pains; I couldn’t swallow comfortably and continually felt as if there was a lump in my chest.

From the very beginning Telstra denied that there was anything wrong with my phone lines. But now, although logically I was sure I was right, I began to have moments where I doubted my own sanity. Not only was my health suffering but so was the health of all those in the small group who continued to support me.

It was at this low point when a letter of support arrived from Fred Fairthorn, local farmer and businessman, stating that it was quite clear to him that the phone system was a disaster area. He referred to problems he had with the system going back six years. Fred wrote his letter in June of 1994 and six years before took me back to the time I first moved into the area. So, Fred agreed that the phones were not always reliable and that they were certainly not up to network standard.

Another incident which spurred me to keep fighting concerns a neighbour, Mr Walter Carey senior. Mr Carey had taken over the next door property after I moved to Cape Bridgewater and, when my claim advisor was researching the phones in the areas, Mr Carey senior wrote of his experiences with the phones.

“I reported the faults many times to Telstra”, Mr Carey wrote, “to no avail. I telephoned Alan Smith and obtained the Melbourne telephone number to ring. Having rung that number I was informed that my number, 055 267 265, was not a business number.

I have questioned my telephone account on several occasions but have no option but to pay as no further account was provided.”

Also in the course of his research my advisor circulated a questionnaire to local residents, regarding their experiences with their phones. Mr Carey’s response to this questionnaire included the following:

Engaged signal indicating phone is always busy	Answer = yes
Recorded Voice Announcements telling people your phone is not connected	Answer = yes
Dead line - caller hears nothing on dialling	Answer = yes
Drop-out - while talking on phone	Answer = yes
Have you reported your problems to Telstra?	Answer = yes

In his letter, Mr Carey went on to say:

“Telstra service is extremely poor at time of reporting this fault to Melbourne. Shearers were engaged and I could not inform them whether sheep were dry - nobody can run a business where phone only works intermittently or is supposedly fixed on many occasions.”

With regard to the shearing incident that Mr Carey refers to here, he was forced to drive some considerable distance from another property to speak to his son who was at the homestead, because he could not reach him on the phone.

On a number of occasions during this period I continued to question Telstra. How, I asked, did they make their calculations for my phone account? My bills were like a yoyo - up one month and down another. My only tool was to refuse to pay the disputed account until they had been investigated but, when I didn’t pay Telstra disconnected my service.

CHAPTER 22

Back in 1992, before Mr Carey took over the next-door property, I had been friendly with the previous owner, Kevin Turner, and often drove over for a chat. Kevin had brought this property intending to turn the lower section, close to the Blow Holes, into a natural golf links: even going as far as having plans drawn up by a professional golfer (I still have a copy of the plans for the golf course). Financial backing had been discussed for the project, sign boards had been erected and brochures printed and distributed to prospective investors. The Commonwealth Development Bank had viewed the proposal and noted that it was a good proposition.

During the time Kevin was working on this proposal I had to drive to his place on many occasions because his line was constantly engaged. Or was it? His phone number was 055 267 275 and mine was 055 267 267 and we often suffered from crossed lines as well. FOI documents later showed that Telstra was well aware of this ‘crossed line’ problem, along with many other complaints from the area. I also have a letter from a Mr Broadhurst in Violet Town, Victoria who had tried, unsuccessfully, to reach Kevin’s phone number on a regular basis throughout 1992 and who had also experienced phone problems when trying to contact me. He wrote to ask if he could stay at my camp while he completed his business with Kevin. In relation to problems reaching me, Mr Broadhurst wrote:

“I have tried to reach you by phone on many occasions only to get a recorded message saying that this number has been disconnected. On other attempts I get an engaged signal that lasts for hours. I would like to make a booking with you for the camp. As I cannot reach you, could you phone me as soon as possible?”

Mr Broadhurst supplied his phone number for me and, when I phoned him, he told me of the similar phone problems he had trying to reach Kevin as well. Could Telstra have been so blind? What drove them to continue to down-play these continuing phone faults? FOI documents would later show how I was treated as the enemy, not as a customer with a legitimate complaint.

Although I can’t say for sure that Kevin lost his business because of the phone problems, and I can’t say that my marriage was lost only because of the phone problems either, it is interesting to think about what might have happened if someone interested in investing in Kevin’s business had been able to reach him. Maybe Cape Bridgewater would now have a golf course. Who knows?

Although this might seem to be a story about telephones it is actually about human suffering, caused by a large corporation with too much power. The ‘spin doctor’ approach to genuine complaints about service certainly contributed in no small way to the ruination of a quality of life for me, and probably contributed to many lost opportunities for other people in rural areas who suffered from similar phone faults.

The letters from Fred Fairthorn, Walter Carey and Mr Broadhurst, along with many similar letters, were all submitted into arbitration for assessment and yet the report produced by the so-called ‘independent’ technical unit clearly stated that “...a comprehensive log of Mr Smith’s complaints does not appear to exist” . The fact that I had also submitted a list of 183 separate faults which had occurred between late 1989 and early 1994 seemed to be of no consequence. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults which had been logged by Telstra’s own three fault centres in one 8 month period alone, from January to August in 1993. As an added bonus I included more than 70 letters which I had received from people over the years, letters describing difficulties in reaching me by phone. Some of these letters were even written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems. This made no difference because DMR/Lanes, the arbitration’s technical resource unit, indicated later that these documents were not given to them by the arbitrator for assessment.

The letters from Telstra employees prompted me to contact Telstra union officials and explain that my complaint was not with individual, everyday technicians but was rather with the corporate management level. It was obviously senior people in the organisation who were creating the problems by refusing to correctly address the constant complaints from the Cape Bridgewater area. Apparently they believed that, by ignoring these complaints, they would save money. And these complaints weren’t only coming from Cape Bridgewater and other rural areas; many complaints were being lodged from metropolitan exchange areas too. Clearly, until Telstra management addressed the corporate culture of their own organisation, the list of complaints would grow.

During his time as Minister for Communications, Senator Kim Beasley of the Labor Party showed his concern with the way Telstra’s Protective Services Unit spied on their own technicians and other employees, documenting their movements while they were on sick leave, so it was not surprising that the COT members believed they also were being spied on. The Protective Services Unit has still not provided any explanation of some of the information they appeared to pluck from thin air: they have never explained how they knew in advance what my movements were, and they have never explained how they knew when my staff left my office.

One instance of Telstra’s apparent ability to read ‘between the lines’ relates to the O’Meara Bus Company incident mentioned previously, in Chapter 6. As you may recall, I had written to Telstra asking for a guarantee that the phone network would work correctly, so I could assure the bus company that they would be able to reach me to place bookings. I wrote this letter to Telstra without ever mentioning the name of the bus company I was tendering to but, in 1994, among documents sent in response to one of my FOI requests, I found a copy of my own letter with the company name “O’Meara” scrawled across the top of it. Were Telstra intercepting my mail? Or were they listening to my phone conversations? Or both? Whichever way they acquired this information, the issue is that this was spying, way back in 1992, long before the arbitration process began in April 1994. And this is only one example of the spying that took place, others will unfold as my story continues, but the issue of spying on customers was a major factor in my decision to publish this story. Someone has to expose Telstra’s power and alert the Australian public to the way they manipulated the legal system. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the very core of Australian democracy.

Documents later acquired under FOI, and then provided to the Australian Federal Police, show that Telstra officers also made a habit of documenting private and business calls I received. This documentation included the names of the people who called me: my wife, my son, Austel and the TIO’s office. Was nothing ever private during this saga?

By this stage I had begun to wonder about some of the information that was being passed to the members of COT (see page 80) by other Telstra customers around the country who had also had problems dealing with Telstra. Was there some organised crime unit within Telstra I wondered? Why was my private business known to a corporation only concerned with communications? Was there more to Telstra than it seemed on the surface? At about this time one concerned citizen wrote to me, expressing concerns she also had regarding the possibility of organised crime within Telstra. I later passed this letter on to the Australian Federal Police. It has not been returned to me.

CHAPTER 23

In Chapter 17 I related the story of how Mr Matherson of Austel helped me test two different model T200 phones on the one line in an effort to find out if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. Documents which I later acquired also showed that Telstra was aware that this fault often occurred in moisture prone areas like Cape Bridgewater and that they were also aware that the local exchange suffered from ‘heat problems’. Now, when I received my copy of Telstra’s defence of my claims, I found that it included a 29 page report titled “T200”. This document reported that, as a result of testing in Telstra’s laboratories, it was clear that the ‘lock-up’ problem with this phone had been caused by beer which had been found inside the casing of the phone.

It is interesting to note that the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994, some 12 days later. Still, according to photographs included in this report, the outside of the phone was very dirty and, according to the technicians, when they opened the phone up, the inside was wet and sticky. Analysis of the ‘wet and sticky’ substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hookswitch’ to lock up. The natural inference here was, of course, that my drinking habits were the cause of all my phone problems. The technicians didn’t know of course that I had tested two different phones on that line and still found the same fault.

A number of questions were immediately raised by this report. When the phone left my office it was quite clean — why did it arrive at the laboratories in such a filthy state? How did the ‘beer’ get inside the phone? Who would have a reason to pour ‘beer’ into the phone and why? If the addition of ‘beer’ was not deliberate, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me since I only rarely drink beer, and then only when I am out socially. I usually only drink Scotch or wine because of a medical problem which means gassy drinks, like beer, create acute discomfort for me.

As soon as I read this ‘beer-in-the-phone’ report I put in a request to the arbitrator, asking to see a copy of all the laboratory technician’s hand-written notes so I could see how they actually arrived at their conclusion. I had appointed my own forensic document researcher to look over the documents when I received them and he had provided me with his credentials as well as signing a confidentiality agreement, stating that he would not disclose his findings to anyone else. Although I passed all this on to the arbitrator, the only response I received was another copy of the original report.

This lack of assistance from the arbitrator is even more shocking because, only a few weeks before, he had allowed Telstra’s forensic document researcher to have access to my personal diaries. It seems there was one rule for Telstra and a different rule for the COT claimants. My gut feeling after the oral hearing in October 1994 was looking more and more to be correct. The arbitrator was definitely favouring Telstra; allowing them access to whatever information they requested but denying me the same access to information I needed.

I cannot begin to explain the anger that simmered inside me. If only I could expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ episode. I knew they had faked the evidence but I couldn’t prove it. What else would they do to defend their faulty phone network? It didn’t seem to matter who I contacted about this fax line — Senators, the arbitrator himself, the arbitrator’s secretary, no-one cared about the truth. It seemed that Telstra management would do anything in their power to prove that there was nothing wrong with the phone lines into my business.

As explained in Chapter 20, during the period when I was having the most trouble with sending and receiving faxes I actually alerted the arbitrator to the problems I was having and the arbitrator’s secretary later acknowledged that she did not receive a number of faxes from me during my arbitration. Still I was charged by Telstra for all the faxes which left my office, hopefully heading for the arbitrator’s office even though, on a number of occasions, they never arrived there. Telstra’s own records show, in fact, that some of these faxes never arrived at their intended destination. Where had they vanished to? My frustration increased when I then found that all these fax faults were supposed to have been caused by ‘beer’ which I knew, without any doubt, could not have been spilt inside the phone before the Telstra technician removed it from my office for testing.

I set about accessing Telstra’s technical analysis data covering particular times when the fax problem was at its worst. These documents showed that the ‘lock-up’ fault had been occurring in the network system since at least August 1993. This led me to ask the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone not only for the 12 days between when the phone left me and when the technicians opened it up, but also from August 1993 to May 1994.

Telstra had supplied a new phone to replace the ‘drunken’ one they took away and, surprise, surprise, according to their own data, the same 10 - 15 second lock-up problem was still apparent right through to June 1994, five weeks after the ‘drunken’ phone was removed and replaced. Perhaps the phone line itself was ‘under the influence’? What a sad episode for a company of such standing in the community. How desperate must they have been to resort to such skulduggery when they were only defending themselves against one broken-down cook and camp operator. Sad indeed.

In Telstra’s defence of my arbitration they also state that this telephone was received at their laboratories in a very dirty condition. Of course, this is not the truth either. The phone was certainly not ‘in a very dirty condition’ when it left my premises. It is interesting to note that, before the technician took the phone away for testing, we both used a nail to scratch our names in the (clean) cradle where the receiver sits. Much later, in a copy of Telstra’s report on this phone, I came across the photo reproduced over the page. This is supposed to be a photo of my phone as it was when it arrived at Telstra’s laboratory. Isn’t it interesting to note the layer of dirt OVER the inscribed signatures? It certainly makes me wonder what lengths Telstra will go to, in order to discredit me.

Neither Telstra nor the TIO have explained how all this dirt and grease appeared OVER our signatures. When the technician collected this phone from my business, if it was as dirty and greasy as it is in this photo, then our signatures would be indented INTO the dirt rather than covered BY the dirt. I also have to ask, if the phone was that dirty, wouldn’t both the technician and I have automatically wiped away the dirt BEFORE we engraved our names on the phone?

These are just some of many unanswered questions I have raised with the Government over the years. How can they continue to protect Telstra when they have this evidence of such unlawful conduct? The Government is fully aware that tampering with evidence in a legal process is a criminal act. First we have dirt and grease splattered on a clean telephone and then we have beer poured into the phone: how sad this has all become.

CHAPTER 24

There were many, many other misleading statements made under oath by Telstra’s defence unit and their technicians which are too numerous to bother with here but most disturbing were the signed Statutory Declarations made by some of the local technicians. Even though they knew at the time that Telstra’s network system into the local exchange was not up to standard, they signed these legal documents, blatantly ignoring the problems and insisting that everything had been all right during the period covered by my claim, except for some minor, every-day type faults.

Some of these signed statements would almost have been laughable, if the situation hadn’t been so serious. One local technician even went so far as to say that he knew of no other business in the Cape Bridgewater area who had experienced the type and number of phone problems that I had experienced. This statement included the comment that the technician had a friend, a stock farm agent, who lived at Cape Bridgewater, and he had never had phone problems when he lived in Cape Bridgewater. When I checked Telstra’s own fault data, however, lo and behold, this very friend had, in fact, complained 7 times in a matter of weeks during early 1994, including complaints about his fax line.

Further, between 1988 and 1993, I was the only tourist operator in Cape Bridgewater: the other residents were fisherman and farmers who did not generate any tourist activity in the area and so were not so reliant on the telephone as I was, particularly for calls outside the local area.

Another set of incorrect statements was lodged by three local technicians who were in charge of my service complaints. These men stated under oath that the original (old) exchange at Cape Bridgewater, back in 1988 when I moved to the area, had five incoming and five outgoing lines when, it was later proved, this old RAX exchange actually only had four incoming and four outgoing lines. One of these technicians went so far as to state that any congestion caused by this ‘five in and five out’ situation would not have affected my service much during business hours. All my calls pass through the Portland exchange before travelling on to their destination and, as we now know from Telstra’s own archival documents, Telstra secretly knew that congestion was prevalent between the Cape Bridgewater and Portland exchanges.

The saddest thing about the statements from these three technicians is that, if they truly believed that this old exchange had five lines in and five lines out then surely they were not doing their jobs properly? Surely one of them would have noticed that there were only eight final selectors? In real technical terms ten lines will carry 41% more traffic (in erlings) than eight lines.

By the time I received Telstra’s defence documents I was completely out of money. How could I employ a technical ground crew to assess the technical side of Telstra’s defence? I still owed George Close, my previous technical advisor, $25,000 — I couldn’t afford to hire another advisor. In fact, I was so heavily in debt by then that another friend mortgaged her house to the tune of $20,000 just to keep me going and came to the camp to help out in the office with the assessment of further FOI documents now arriving. Thankfully people I knew could clearly see how right I was and they continued to support me but, in practical terms, my team came down to one house-wife/mother and one camp operator — pitted against the power of Telstra and their vast team of highly paid legal and technical experts.

The Federal Police had shown an interest in the many issues I had raised with Austel and finally they came to Cape Bridgewater to interview me. My friend, Cathy, operated the phones in the office for five hours while the police taped their interview with me. During this five hour period Cathy experienced a number of incoming phone faults — with the phone alarm bell ringing (two rings, stop, one ring, stop — then a dead line). The visiting Federal police could see for themselves what was happening. Cathy then made her own Statutory Declaration, telling the police about a survey I had distributed some months before, back in late 1993, through the Ballarat Courier Newspaper. I had experienced an enormous number of complaints from the Ballarat region after I advertised my singles club project and this survey was taken to prompt people to write to me with their own experiences with phone faults in their area. I asked newspaper readers to send their complaints to me, care of the newspaper, and Cathy (who was living in the area at the time) had agreed to collect the mail for me. The issue with this survey which Cathy thought important enough to include in her Statutory Declaration, relates to collection of this mail. On two separate occasions Cathy phoned the paper and was told that, yes, there was mail waiting for her to collect but, when she arrived at the newspaper’s office, that mail had mysteriously vanished. Who had collected our mail and why would the results of this survey be so interesting to someone else? What did they intend to do with the survey results?

So, here I was, more confused, frustrated and angry than ever, with no money, $140,000 further in debt because of the resultant and consequential losses created by this arbitration farce. That $140,000 later grew to well over $200,000 and it continues to grow while these matters are not addressed. Remember, on 23 November 1993, both the chairman of Austel and the TIO had assured the COT four (and the Australian Government) that this would be a fast-tracked, non-legalistic process which would take only a matter of weeks. When I received my copy of Telstra’s defence documents however they were accompanied by a bound document entitled “Telstra’s Legal Submission (1994)” (my emphasis).

How could this be when, immediately before we signed for arbitration, the TIO’s legal counsel had assured us that the whole process had been specifically designed to give the claimants natural justice? How could this be, when the TIO himself had confirmed that the arbitration process would be based on the existing commercial agreement? I had trusted these two people. They represented hope after years of trying to deal with the underhanded tricks of Telstra. They represented the legal system to me, and they represented justice. I had believed that we were finally on the road to the end of all my worries, back then when we signed for arbitration. And now this document shattered all those hopes, again, along with all the trust I had put in the system and in these two representatives of justice. Would this saga never end?

On 3 December 1993 the TIO wrote to Telstra (see following page), clearly acknowledging his understanding that this was to be a Fast Track Settlement Procedure. It is interesting to note that he also refers to appointing an assessor and makes no reference to an arbitrator. The appointment of an assessor is appropriate for a commercial assessment, which is what the COT four had signed for. This agreement, that we signed in good faith, was legally binding -- so what happened to change this situation? Why did the TIO change the rules? Even Austel has acknowledged, in letters to the COT four, that there was no mention of an arbitrator in the document we signed for the Fast Track Settlement Process. What happened to cause the TIO to then force us into this highly legalistic and costly arbitration process? Could it have something to do with the fact that the TIO later became a Government Minister?

CHAPTER 25

When I originally signed for arbitration, the TIO had confirmed that all the rules and regulations surrounding the original commercial agreement would remain in place. These rules had included a confidentiality agreement which stated that none of the claimants could ever disclose the value of their award, if an award was made. Remember, the COT four signed for arbitration under severe duress, believing that we had no other alternative and because we were all running out of money to finance our fight for justice.

After reading Telstra’s defence documents I went back to the arbitration rules. Imagine my astonishment when I discovered that the confidentiality agreement section had been changed to suit Telstra’s agreed rules of arbitration. Now I discovered I was not allowed to disclose anything at all to do with the arbitration. Obviously the rules I signed for at arbitration were not what I had been told they were. The agreement which I was advised to sign by the TIO and his legal counsel prevented me from disclosing information relevant to the arbitration, including claim and defence documents. Because I believe that Telstra acted in concert with the arbitrator so that not all of my claims would be correctly addressed, I have now broken my agreement because I believe strongly in the legal rights of all Australians. I also believe strongly that we should all respect the law but, after everything I have suffered through over these past ten years, I no longer believe that our Australian legal system will necessarily ensure justice for all. The COT arbitrations have been a farce and therefore the rules, drawn up ostensibly to ensure justice, are also a farce. If this book contravenes the confidentiality agreement, so be it. The truth must be told, and it must be told to the Australian public who have all relied on Telstra to provide the telecommunications system for the whole of the country.

Christmas 1994 slid past in a blur and I found myself into the new year of 1995 with only two weeks left in which to submit my reply to Telstra’s defence, and thousands and thousands of discovery documents to sort through. Once again the stress was getting to me and my health was deteriorating fast. Not only was this affecting the preparation of my response, but it was seriously damaging the running of my business. The festive season is always the busiest for bookings of course, but I was then averaging debilitating giddiness attacks about twice a week. Fortunately Cathy had, by this time, moved into the camp house. Without her assistance I would never have survived through this time.

Garry Ellicot came to Cape Bridgewater for a brief stop-over and together we worked through New Year’s Eve while Cathy went with her sister and brother-in-law to see in the New Year in Portland. Some time after 1.30 on the morning of the first of January, while Garry and I were still labouring over my reply, the troops arrived back from the celebrations, armed with a bottle of Scotch and a bottle of Port. After all the hard work and long hours we had put in over the past two days, a couple of drinks saw Garry and me out like lights. The following day Garry flew back home.

February saw the camp fairly heavily booked, thank goodness. Tony Speed, year 7 co-ordinator for Hamilton High School (now Bainbridge College) brought his group along, as he had every year from 1990. Even with major problems contacting me on many occasions, he is still a regular customer. His support, and that of many other regular customers, has played a big part in keeping me going through the worst times.

After being here in the February, and because he had experienced problems reaching me by phone from his very first contact, back in 1990, when he returned to school Tony wrote describing his continuing concerns about not being able to contact the camp by phone. In part of this letter he states:

“I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week March 1st to 5th I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was ‘dead’. This was extremely frustrating and had I not been aware of Alan’s phone problems, I would have used another camp site.”

Tony and his group had stayed for a full five days, following closely on the heels of a group from the Birchip Community Centre, who have come regularly since 1988. My records from this month show that members of the Birchip group continually complained that my coin-operated gold phone, installed for the campers use, was ‘always on the blink’.

Tony’s group left on a Friday and Lake Bolac Secondary College were due the following Monday and now I was even closer to running out of time to send in any further supporting claim material. I felt like everything was conspiring against me. Of course, the main part of the problem, and the part that the TIO’s office never seemed to grasp, was that I wasn’t just ‘running’ my business, I was also working in my business, supported only by part-time staff. How could I successfully prepare such a complicated claim and response during the busiest period of the year for my business (November to May)?

If I had only had a reliable phone service from the very beginning I would, by now, have been in a position to hire at least three full-time staff, supported by daily, part-time waitresses. But since I was not in this position I had very little time available to even think about my claim against Telstra. I certainly had very little time available to prepare the claim and the consequential losses continued to mount: all because Telstra would not admit that the phone service was totally outdated and not coping with the volume of calls. I could not believe the position the COTs now found themselves in, through no fault of their own: a handful of small-business people pitting their wits against the legal minds of some of the largest corporations in the country.

Back on 6th January I had submitted to the arbitrator a three page list of procedural documents (refer Glossary), asking him to request these documents from Telstra under the arbitration agreement. Come March however, two months later, and I was still waiting. I was at a loss to know where to turn for help.

Again and again I was faced with the same tactics. Every request I made of the arbitrator continued to bring a roar of silence — certainly no documentation appeared. Worn out and frustrated, my irritation with the arbitrator grew worse each day.

On 23 January 1995, in response to an earlier letter dated 13 January 1995 which I had sent to the arbitrator asking for information about the Bell Canada report and how they arrived at their findings, I finally received a letter from the arbitrator in which he noted that “Telecom does not consider it has any further information of relevance in its possession.” The arbitrator goes on to ask me to respond to this comment within 24 hours in order to “be certain that there is no confusion between the parties as to the documentation which is being sought.” As requested, I responded the following day. My fax account shows that this two page response left my office and took 2 minutes and 19 seconds to travel to the arbitrator’s fax. This length of time indicates that there were indeed two pages as most faxes take about 1 minute per page to transmit successfully.

According to the rules of the arbitration, all documents sent to the arbitrator must be copied to the other party (in this case, of course, that other party is Telstra).

Twelve months after my arbitration procedure was completed, through the persistence and support of the Commonwealth Ombudsman’s Office and under FOI, I was provided with information that showed that Telstra did not receive my response of 24 January 1995, which had been faxed to the arbitrator. There were also another 42 claim documents, which had been sent via fax at other times, which, according to their records, never reached Telstra’s defence unit, even though my fax account indicates that they reached the arbitrator’s office.

In further relation to the Bell Canada report and the tests they allegedly carried out at Cape Bridgewater, another similar FOI document, N00040, which appears in Chapter 29, indicates the importance of my persistent requests for data proving that the Bell Canada tests were done on the days shown in their report.

This document, dated 20 June 1994, clearly shows that there is an error in the tests from Richmond to the Cape Bridgewater PTARS, 055 267 211 as detailed in the BCI original report. Unfortunately, I did not receive this document until three years after my arbitration had been completed. It was supplied at that time by another COT member.

Three weeks after my arbitration had been completed and my appeal time had totally expired I received three more FOI documents (N00005, N00006 and N00037). Document N00005, dated 6 September 1994, from Telstra to Bell Canada, states, in the second paragraph:

“Specifically, the start and finish times for the test run from Richmond digital exchange (RCMX), test line 03 428 8974, to Portland exchange, Cape Bridgewater RCM (CBWR) number range, test line 055 267 211, (detailed in section 15.23 of the report) are impracticable. The number of calls made during the test run could not have been completed within the time span shown and the test run would have clashed with other test runs performed within those times.”

and document N00037, an internal Telstra e-mail headed “Smith’s Query on BCI Tests”, states, in part:

“Mr Smith is correct in the suggestion implied in his query that the test results recorded in the ‘Addendum - Additional Tests’ part of the BCI report to Telecom, 1 November 1993, are impracticable.”

Since Telstra had not sent me copies of these four documents before the end of the arbitration procedure 11 May 1995, how could they turn round and tell the arbitrator on 13 January 1995 that they considered they had given me everything they had which was relevant to the Bell Canada report? The Canadian Director General of Telecommunications Policy agreed (see page 141) that I should contact BCI regarding the alleged errors in their test report but, although I wrote to BCI in Canada three times, I have never received a reply.

Further information relating to the BCI report came to hand much later, as this book was nearing completion. A copy of a report from Hansard, detailing discussions which took place in the Senate on 26 September 1997 was forwarded to me late in August of 1999. This report indicates quite clearly that Telstra misled the Senate in regard to the BCI report. Two pages from Hansard are reproduced at the end of this story, with a commentary, starting on page 223.

While the group from Birchip were at the camp I was visited by people from Ferrier Hodgson Corporate Advisory (FHCA) who, along with a representative from Telstra, were coming to assess my financial losses resulting from the phone difficulties I had been suffering. FHCA were supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater and I had been led to believe that they provided just such a list to Telstra, but I never actually saw any documentation myself. Later I was to uncover some rather unsavoury information in relation to FHCA but on the day of their visit, because the Telstra representative had been delayed by poor landing conditions at the local airport, the FHCA people had time for a leisurely look around the camp and the local area in general.

Under the rules of the arbitration, neither the resource unit, the technical advisory unit or FHCA were allowed to be alone with either Telstra or with me but there was not much we could do about the two hour delay between the time FHCA arrived and the time Telstra arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived we first visited the once-proposed golf links at Kevin Turner’s old homestead. It was then that I began to recognise FHCA’s true colours: everything I said was ignored or negated. FHCA, it seems, already had fixed ideas about this case.

Perhaps it was my early years at sea as a 15-year-old, perhaps I was just being ‘streetwise’, but whatever you like to call it, I was not going to ignore my feelings again. FHCA’s attitude and the way they played down my business in front of the Telstra representative was a clear indication of what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without including me, and being aware that I couldn’t leave the camp site because the Birchip group were in residence and besides, this being the holiday period, there was always the chance that passing tourists might want a bed for the night, I had arranged lunch at the camp. Cathy had brought fresh bread rolls in town and I provided fresh pasta and salad with three different cold meats. My offer of lunch was, however, declined and the others all adjourned to the Kiosk by the beach, totally in opposition to the rules of the arbitration. And what I could I do?

They all returned later, but then stayed only another 15 minutes before leaving for Melbourne. I tried to introduce evidence which supported my position but what I was not aware of was an arbitration procedure rule which means that late information, if not considered relevant, will usually not be accepted into evidence by the arbitrator. In my case, much of the information I was receiving from Telstra under the discovery process (in the form of FOI documents) were arriving months after my original request. Part of the information I attempted to introduce a this stage included copies of brochures and other information obtained from businesses similar to the business I had hoped to build here; businesses which provided a guest house set-up for week-end get-aways. A number of professionals in the tourist industry are convinced that my situation, right by the sea, would be ideal for this kind of business but now, after all the energy I have spent just fighting for a decent phone system, I don’t have the energy and enthusiasm I once had, nor do I have the will to struggle any more, particularly when I look back at the ruined lives scattered along the road behind me.

Anyway, although the brochures and other documents that I gave to FHCA on this day were not accepted into the arbitration process, I have never set eyes on this information again, not even when some of my claim material was finally returned to me after the arbitrator had handed down his findings.

CHAPTER 26

With most of my days taken up with camp duties during this holiday period, I only had the evenings to work on my final claim material. Before I had come anywhere near completion of the collation of the first 20,000 documents that had arrived after Telstra lodged their defence, more had been delivered. With all this paperwork where was I to find enough space to sort them out so I could refer back and forth among them? The Australian public purse might well have been paying Telstra’s legal bill but I wasn’t getting any support at all: I couldn’t even afford to hire a law student to help. And all any of us in the COT group were trying to do was achieve simple justice for ourselves and, at the same time, alert the Australian public to the cover-up being orchestrated by Telstra. Telstra just seemed to be doing anything they could to stop us.

Now, well into 1995, I was still struggling with the enormous task of attempting to collate all the FOI documents I was receiving, so late into the process, into some sort of sensible order. Because it seemed to me, with my lack of experience in legal matters, that the arbitrator was not accepting any more material in support of my claim, I believed I could not lodge these documents as further evidence even though Telstra’s CCAS technical data sheets, when compared to my Telstra accounts, showed clearly that I was still being charged for calls which never connected. Instead I phoned the arbitrator to ask for another oral hearing. I wanted to ask the technical resource unit how best to lay out all this evidence; I was concerned that, because of my lack of technical expertise, they might not understand what I was trying to show. During this phone conversation with the arbitrator I explained that I now owed my technical advisor $25,000 and could not afford to continue to run up any more expense.

The arbitrator advised me to continue working as I had been because DMR, the technical resource unit, would be visiting Cape Bridgewater shortly and they could discuss the presentation of my material with me then. Before that visit occurred however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office. This new company was Lanes Telecommunications, run by a man who had previously worked for Telstra for 20 years.

Eleven months down the track and now we are told there’s a whole new ball-game, a new resource unit is to access our claims and, to add insult to injury, an ex-Telstra employee is to be the main player. Ann, Graham and I made it quite clear to the TIO that we were not happy about this and so DMR Group Canada were brought in to the process to alleviate our fears. DMR Australia, a company with a high reputation in the telecommunications industry, had signed the original agreement but then pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. This situation raises two questions: Did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could DMR pull out of a signed contract?

The TIO advised, in writing, that Lanes would only assist DMR Group Canada but, as it turned out, Lanes did most of the assessments. This was not according to the written agreement forwarded to me by the TIO: once more it seems that the TIO had misled me before I signed for arbitration.

All this on top of having to cope with an arbitrator who was a partner in a law firm which was doing contract work for Telstra. It was almost too much to bear. I felt as if the whole world was ganging up on me, as if the whole world supported Telstra and no-one cared what happened to the COT four. Surely it couldn’t get any worse? But it did.

As April 1995 rolled around, even more tricks of the justice trade were unearthed. On the 6th April a Telstra official arrived at the camp and we then collected a representative from Lanes from the airport. Together the three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who apparently never had problems with his phone - until I uncovered the agent’s complaint records).

By this stage in the process I had found a number of documents pertaining to congestion at the local exchanges. One of these FOI documents, numbered K01003 and dated 7 April 1994, twelve months earlier, stated:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.”

Another, titled “Cape Bridgewater COT”, and dated April 6 1994, stated:

“Chris: Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE - R (PORX) it was decided to increment this route from 30 to 60 CCTS.

I have reiterated to all parties concerned the importance of getting this project done ASAP.

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).”

The reference to an increase from “30 to 60 CCTS” refers to an extra 30 circuits into Portland. This was a 100% increase in the phone route (which therefore would create a decrease in congestion) into Portland exchange, not 30% as reported in Telstra’s FOI document K01003. To the credit of the people from Lanes, when we arrived at the Portland exchange, it was clear to them that Telstra had under-estimated this decrease in congestion by 70%. The Telstra officers on duty at the Portland exchange at the time seemed a touch embarrassed at the error uncovered by Lanes. These technicians were not aware of a phone call that I had received the previous month, from Frank Blount, Telstra’s CEO. It is, of course, interesting to speculate on why the top man in such a large organisation would take the time to phone a small holiday camp at the far end of the State, particularly if everything I had been saying to Austel and to the politicians was not considered to be relevant. The fact is, he did ring me, and I took the opportunity to point out my belief that both Portland and Cape Bridgewater exchanges had been suffering from congestion for some years. He gave me his word that he would investigate my theory.

FOI documents show that he was a man of his word. What is more, his investigation proved that I was right. The congestion was clearly confirmed in a Telstra internal memo dated 30/3/94 (FOI document K01007) which states:

“On 27th March Mr Smith complained that he did not receive two calls on Sunday night from Melbourne. The customers calling Mr Smith received “busy Tone”. During the period 20:00 to 21:00, Telecom’s traffic monitoring equipment indicated that the amount of calls being made into Portland exceeded the available junctions. It is probable that the callers to Mr Smith in fact received tone indicating congestion in the telephone network into the Portland area.”

This memo raises another question, quite aside from the fact that it recognises problems with congestion into the Portland exchange: would ordinary callers actually recognise the difference between a ‘busy tone’ and a ‘congested tone’ which sound very similar to the untrained ear? It also indicates the technician’s acceptance of congestion at the Portland exchange. In the case of my business, this situation was compounded by the fact that, after first negotiating the minefield of congestion at Portland, calls were then switched through to the RCM exchange at Cape Bridgewater where they encountered even more difficulties created by heat and other problems. No wonder my customer’s complaints continued to mount, even while my arbitration was in progress — each call had to cross two separate hurdles before there was any chance of actually connecting to my phone!

On 6th April, while the Lanes representatives were in Cape Bridgewater, I again attempted to raise the incorrect billing issues. According to the Lanes people, the arbitrator had instructed them not to assess any new claim material. Naturally I was most irate. This was a complete turn-around by the arbitrator who had assured me that, if I discovered any new information among FOI documents which I received late, that information could be presented to the technical resource unit when they came to the camp. I had burned the midnight oil night after night to have my evidence prepared before the technical team arrived and it was clear that all this new information would have further supported my allegations. I was so angry, in fact, that I managed to have him at least look at one document (below) while the Telstra official was still there.

How could I be charged for a 9.49 minute call on 13 January 1995 at 11.50 am, I asked, and then for a 42 second call at 11.57 am? This is an impossibility.

This caught the attention of the Lanes people and I was able to offer further examples of incorrect charging on this 1800 account, both on 10th and on 11th January. The account showed calls from my home number to the camp number. According to my diary notes, both those calls registered an engaged signal, but both were charged as having connected. And again, on 13 January, there were similar examples of more incorrect charging. Clearly incorrect charging had been running rampant through Telstra, just as this copy of my account shows. This document was included in my claim.

Neither the Telstra official nor the people from Lanes were prepared to comment on this evidence at the time, although I was assured that the matter would be taken up and addressed as part of the arbitration. The Telstra and Lanes representatives left shortly after this — together. Together, and without me, was, of course, in direct breach of the rules of the arbitration. What private conversations took place between these two? The answer to that question is probably only known to the participants themselves (and perhaps the arbitrator?).

Both the resource units were now preparing their reports and I had a gut feeling that the COT members had been sold more than a pup. I felt as if I had been crucified by the very person who was supposed to be delivering justice, my arbitrator. By this stage he had not once investigated my questions regarding why my fax and my phones continued to create problems. I was now convinced that the arbitration was just a sham, instigated with the single aim of ‘shutting me up’ by providing some sort of minimum award payment.

CHAPTER 27

Cathy was now involved in the business as a partner but I had only been able to pay her very minimum wages from early 1994. After Lanes and Telstra left we had quite a disagreement about my next move. I believed I had a great idea (Cathy disagreed). The Commonwealth Ombudsman’s Office had been very supportive of my allegations concerning Telstra’s defective supply of the discovery documents I had requested under the FOI act. Throughout this whole awful saga they had, again and again, proved themselves to be truly impartial. What a breath of fresh, clean air!

It was perfectly clear that this was one government department that operated strictly according to the principals of natural justice. Based on my knowledge that this office was involved in preparation of a report on Telstra’s failure to provide the COT’s discovery documents under the FOI Act, I guessed that this office would keep a copy of every document I had faxed them, as well as all the documents they had faxed to me. I was sure I was onto a winner here. I asked the Commonwealth Ombudsman’s Office to use my 1800 freecall number for all future calls because I knew that they would document the number of calls they made in relation to my complaints. I was convinced that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

Two years later, on the 28th February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all the communications between my office and theirs. This document formed part of their report to Telstra’s Corporate Customer Affairs Office. This report showed that they had received 315 faxes from me, with 1369 attachments and they had sent 21 faxes to me with 209 attachments. And it also recorded 163 calls from my office to theirs with 43 from their office to my 1800 account. Bingo! Telstra, however, had charged me for 92 calls from the Ombudsman on my 1800 account over this same period. I have lost another three pages of 1800 accounts for the same period but have not bothered to have them replaced until Telstra explains the difference in these figures. Forty-three calls registered by the Commonwealth Ombudsman’s Office against 92 calls actually charged by Telstra needs some explaining. As of December 1998 Telstra has still not provided me with a rebate for these incorrectly charged calls, nor have they made any attempt to explain such a high margin of discrepancy. This matter has not been investigated by the TIO’s office either.

The TIO’s office, and Senator Alston, have been shown clearly that this incorrect charging, both on my 1800 line and on my fax line, continued for at least 18 months after the arbitrator handed down my ‘award’. Since neither Telstra nor the arbitrator ever addressed this issue during my arbitration, then I have never been awarded anything in relation to this particular matter, even though the Commonwealth Ombudsman’s information helped me prove, beyond any doubt, that there were considerable problems with Telstra’s billing system as much as 20 months AFTER my ‘award’ had been handed down. Obviously this means that the problem continued right through the arbitration itself.

How could the arbitrator hand down an ‘award’ when it was clear that incorrect charging, one of the main reasons I was in arbitration in the first place, was still occurring on a regular basis, and had occurred right through the time I was in arbitration? Since this incorrect charging was one of the issues raised in the arbitration, and it was never addressed or included in the ‘award’, how can this procedure be complete?

I have written numerous letters to both the TIO’s office and to Telstra about this matter but still, in December 1998, neither has offered any explanation and still the incorrect charging over the Commonwealth Ombudsman’s calls has not been addressed in any way. More on this matter later in this unbelievable story.

May 11th 1995 was D-day, the day the arbitrator was due to hand down his award. I had previously been sent a copy of the DMR/Lanes report on the technical losses attributed to the phone faults my business had suffered over the previous 6½ years which my claim covered. I had found, to my horror, that this report had only addressed 26 of the points I had raised in my claim leaving many very relevant claim documents un-addressed. In fact calculations now show that DMR/Lanes assessed less than half the claim documents I submitted. This effectively gave Telstra a major advantage since they therefore did not have to respond to the documents which were not covered in the DMR/Lanes report. The TIO has still not investigated why both the arbitrator and DMR/Lanes allowed so much of my claim material to be ignored. The information on pages 169 to 171 in Chapter 30 further supports this fact.

None of the incorrect charging issues had been addressed at all and neither had my questions about claim documents which had been lost between my fax and their intended destination. Nor had the continuing phone faults been addressed. Bile rose from my stomach. I had no money left to employ George Close again. What could I do? This was clearly an attempt to ‘wipe the slate clean’ for Telstra. Obviously the arbitrator thought he could get away with awarding me a minimum payment, without any compensation to cover all the consequential and resultant costs that had accumulated as I prepared my claim and then as I worked to bring all these matters to the attention of Austel and the Government. Senator Alston knew all along that the COT members had been verbally assured by the chairman of Austel that all these other costs would be reimbursed if we proved our claim. This agreement was never put in writing because of the concern that it would set a precedent, but it was clearly understood by all concerned. (see Chapter 14).

DMR/Lanes report found that a number of my claims were proven and, sure, they did find against Telstra on a few issues, but not anywhere near the extent of the problems which had been shown by my claim documents.

If anyone had investigated the short duration calls and asked why Telstra charged them to my account between May and August of 1993 (while the malicious call tracing equipment was connected to my phone service), it would have been quite clear that these calls had been illegally diverted somewhere else.

Even more alarming, if this issue had been investigated correctly, considering that the short duration calls continued at least until June of 1994, an even more sordid picture would have emerged: the possibility that my incoming calls were still being diverted twelve months later.

CHAPTER 28

The following fault assessments are taken from the DMR/Lanes technical report, specifically from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. The DMR/Lanes report was compiled from Telstra’s own data and records.

“2.2 There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

ASSESSMENT - Service was less than reasonable.

2.8 RCM1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

ASSESSMENT - Service was less than reasonable.

2.9 Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

ASSESSMENT - Service was less than reasonable.

This report then goes on to summarise the situation regarding the gold phone:

“Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightening strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.

ASSESSMENT: A reasonable level of service was provided.”

So, in their report, DMR/Lanes stated. at point 2.8 (above) that 4 days was a “less than reasonable” time-frame for repair of a fault but, in the summing up of this section of the report, they state that 11 days was a reasonable time-frame for repair of a fault.

Also in their summing up (above) they gave the gold phone a clean bill of health, but the gold phone was connected to RCM 1 for most of its existence so how could it possibly have been working well when the exchange (the RCM 1 referred to in point 2.2 above) “had a track record of problems”?

Bearing in mind that this report was compiled seven years after my first complaint was lodged with Telstra, isn’t it just a bit of a worry that DMR/Lanes made no reference to the many diary notes and letters from customers which I lodged with the arbitration, many referring to continual problems with this gold phone? How could they possibly prepare a secret document for the arbitrator (which I was never intended to see), giving the system a clean bill of health, with all these complaints piling up? Mind you, it must be noted that DMR/Lanes did state that they did not assess all my claim documents when they were assessing the phone faults at Cape Bridgewater. This, of course, raises the question of why they didn’t assess all these claim documents. Who in Australia had the power to instruct an independent technical resource unit that they were not to address issues raised in claim documents which had been presented to a legal procedure? Clearly, if you have enough resources and enough power to influence the judge (in my case the arbitrator), you can hijack the system whenever you want to.

The ‘lighting strike’ referred to is another interesting item. According to FOI documents which I included in my claim, the exchange had received a lightning strike some time in November of 1992. This lightning strike apparently damaged a ‘bearer’ at the exchange. This document also reports that it ‘appeared that the fault was rectified by late January 1993’. According to my calculations, even if the ‘some time in November’ was actually late in November, this is still 2 months, not 11 days as DMR/ Lanes had stated in their findings. To have a phone out of order for two months is certainly not a reasonable level of service.

Other information that came to light while Austel was researching their COT report (see Chapter 6) shows that at one stage the Telstra technicians forgot to connect a fault alarm at the Cape Bridgewater RCM exchange. Since Cape Bridgewater was an un-manned exchange, this alarm was vital as it was the only way the technicians at Portland would know if there was a problem or a fault at the exchange. This alarm was not connected for 18 months — from August 1991 through to March 1993. Why hadn’t DMR/Lanes highlighted this error in their technical report? Obviously many of the phone faults my business experienced during these 18 months would have gone undetected by the local technicians simply because the alarm wasn’t connected.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, using Telstra’s own documentation, that there had been continuing problems with the gold phone over a period of years. These problems were supported by many letters from my customers. In December 1995, some time after receiving the DMR/Lanes report (dated 30 April 1995), I had finally had enough, and I refused to pay the gold phone account until the gold phone faults were acknowledged by Telstra. Telstra’s response was to cut the phone off. This phone remains disconnected up to the present day (December 1998), with the TIO’s office stating that they are ‘looking into the matter’. How long will it take to resolve this issue? My customers and I have already been patiently waiting for three long years.

As if it wasn’t hard enough to respond to the technical report lodged by DMR/Lanes, the financial report, prepared by FHCA, was even more of a nightmare. On 9 May 1995, my forensic accountant, Derek Ryan of D M Ryan Corporate, actually wrote a 39 page report to the arbitrator explaining the failings he had found in the financial report. Some of the points he raised in that letter were:

“1. The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2. We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. THE MAIN CALCULATION OF LOSS HAS BEEN CONSIDERABLY UNDERSTATED BY AN ERROR OF LOGIC.

The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.”

D M Ryan has never received a response from the arbitrator (and, at the time of writing this, it is now December 1998). Two days after D M Ryan’s letter was sent, on 11th May 1995, the arbitrator handed down his award. Compared to D M Ryan’s calculations of the losses my business had suffered because of the phone problems, this award gave only 10c in the dollar. After I had taken into account all the expenses I accumulated just to bring the phone problems to the attention of Austel and the Senate, and all the expenses associated with submitting my claim to the arbitrator, I was left with only 4 cents in the dollar. By this stage I had been fighting for justice for 7 years and I was left to ask — what about my failing health?

I was not aware of Derek’s disgust at the handling of the arbitration procedure and, unbeknown to me, he contacted the project manager of my claim at FHCA and asked him how he had arrived at his findings. The project manager advised Derek that, under instructions from the arbitrator, he had been forced to exclude a large amount of information from his final report, meaning that the final report was actually incomplete. The two following letters, written by Derek Ryan to Senator Richard Alston, Minister for Communications and Mr John Pinnock, the new TIO, clearly show Derek’s disappointment with FHCA. He considered that their conduct was detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

If I thought I knew what stress was before this, I was certainly learning more now. The arbitrator’s award had been delivered to me by taxi from Melbourne and the effect was shattering but I had to keep going, I had customers to think about. Six days after receiving the report however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed, twitching on the floor. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. A five day stay in hospital followed and the final diagnosis was — stress.

On the first day home after the hospital stay I received a call from the FHCA project manager. He had rung, he said, to let me know that he was aware that things hadn’t turned out quite as I had hoped but he believed I now had to put it all behind me, get on with my life and show them what I could do. I am still wondering who ‘them’ was.

As if it isn’t bad enough that the so-called independent arbitrator forced the so-called independent financial assessors to ‘doctor’ their report, it is even more disappointing that the project manager for the financial assessors would wait until after my appeal time had elapsed before speaking out. And, why did he ring then anyway? I had only ever spoken to him once through this whole process and that was back on 11 October 1994, during the oral hearing. This phone call seemed totally out of character; or had he heard about my collapse and had an attack of conscience?

Even stranger, during this conversation, the project manager informed me that the executive manager of my case with DMR was also going to ring me; and so he did.

The Canadian DMR manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’ I was so stunned at this statement that ‘This sort of situation would never have happened in North America’ that I later forwarded a signed Statutory Declaration, recording my memory of this conversation, to various Government Ministers. I also wrote and faxed DMR in Canada but, three years later, I am still waiting for a response. I have not received any sort of explanation for the ‘would never have happened in North America’ comment. Could it be that, in Canada, DMR Group Canada would not have been pushed so that they didn’t correctly address a legal claim? Who knows?

What we do know however, from the letter on page 141 from the Director General of Telecommunications Policy in Canada, is that he was concerned about errors that may have been in the Bell Canada Report.

CHAPTER 29

And still the plot continued to thicken .....

On the 23rd May 1995 another 700 or so FOI discovery documents arrived. I couldn’t even begin to imagine what on earth Telstra thought they were going to achieve by this. Why now? Why not twelve months ago when I could have used the material to support my claim? Why not even ten DAYS ago — because two of the documents included in this latest batch proved to be particularly interesting and, if I had only had them ten days before I could have used them to support an appeal against the arbitrator’s award. Even better, if I had had them a month before I could have amended the claim itself. By the time I had these documents in my possession the only way I could have used them was to take the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means at the time, as Telstra well knew.

The two documents in question were copies of letters exchanged between Telstra and Bell Canada International in August and September of 1994. These letters acknowledged that the BCI tests, as reported in the addendum to their Cape Bridgewater report of 10 November 1993, were impracticable.

When, some three years later, I received yet another document (N00040) from another COT member, the deception was totally uncovered. Document N00040, dated 20 June 1994, and under the heading “Smith Query — BCI tests to Cape Bridgewater”, is reproduced below:

Clearly Telstra was aware that something was not right with the BCI report which they had provided to the Senate in 1993, allegedly to support their assertions that their network into the Cape Bridgewater exchange was up to world standard. We now know, of course, that Telstra has continued to mislead the Senate for many years about the true standard of this network.

On the 6th September 1994, in Telstra’s letter to Mr Kealey of Bell Canada (the FOI document numbered N00005 and 6), Telstra specifically referred to the start and finish times for the tests run from the Richmond digital exchange (RCMX), from test line 03 428 8974 to the Portland exchange test line, 055 267 211. These tests were detailed in section 15.23 of the BCI report and Telstra referred to these tests as being impracticable although they did not disclose that this was partly because Telstra were themselves conducting Neat testing to the same number in Cape Bridgewater, namely 055 267 211 (the PTARS test line) at the same time on the same day.

This letter to BCI is not the only document to refer to the impracticability of these tests; a number of inter-departmental documents within Telstra also refer to this problem.

FOI document L68979 is a copy of a letter from Telstra to my arbitrator on 13 September 1994. Telstra acknowledges in this letter that the arbitrator has not given them any directions relating to the raw data from the BCI tests which I had asked the arbitrator to request from them. I asked to see this raw test data so I could prove to the arbitrator that my telephone service was so poor at the time that these tests could not possibly have been carried out as shown in the BCI report. I have not yet sighted any documentation of any sort, certainly none of the raw data has been passed to me by either the arbitrator (under the discovery process), during the arbitration, or by anyone else since. I have not received any documentation showing how BCI arrived at the figures in their report.

Even though Telstra knew that this BCI report was impracticable and flawed, they still used the BCI test results in their defence of my claims, to support their assertions that the network was working correctly. I know that at least one copy of this report was passed on to Telstra’s defence unit because it has been acknowledged in writing by a clinical psychologist, who was commissioned by Telstra to assess my mental health, that he had read the BCI report before he met me.

Of course, any ordinary person would believe that Telstra’s phone system was working properly if they read BCI’s report because BCI is an international, highly regarded and qualified communications company and because they clearly stated that thousands and thousands of test calls were made to the exchange that my phone was connected to, with a 99.5% positive result. The first conclusion would then have to be that my claims were unsubstantiated and, following this, that I must be out of my mind in some way. The fact still remains that Telstra knowingly provided a flawed document to support their defence. This is illegal in this country and is classified as perjury in a legal process. Why hasn’t Telstra been made accountable for their actions by the Government?

For years I have canvassed the Communications Minister and the TIO to have the BCI report withdrawn from Telstra’s defence. My requests seem to have fallen on deaf ears. It is clear from Telstra’s own FOI documents that, for some six months before they lodged their defence, they knew that this report was impracticable. The TIO and the various Government Ministers who have been notified of the problems with this report have so far failed in their Duty of Care — they should have ensured that this report was withdrawn from the Public Domain when they were first alerted to the impracticability of it and the flaws it contained. As it stood then, and still stands now (because I don’t have the finances to continue the fight), there is no way I can take my case to the Supreme Court although, in 1998, Ann Garms did just that. At the time of writing she has lost the first round but is now waiting on an appeal being heard. Her court costs are so far in excess of $350,000. It seems that Australian justice can be painfully expensive.

In a letter to the Commonwealth Ombudsman, Telstra has written:

“The reference to documents relating to Mr Smith being lost or destroyed refers to a discussion I had with Mr Smith. Apparently Telstra had previously informed Mr Smith that specific documents had been lost or destroyed. I am not aware of the circumstances in which this occurred and will arrange for my staff to ascertain the details from Mr Smith and advise you of the circumstances.”

Telstra’s Commercial General Manager for Victoria and Tasmania has added a hand-written note to another document, asking, in relation to one of my FOI requests:

“Should we make Alan pay, even if we can’t provide everything he wants? Please prepare the letter as suggested.”

Does this note indicate that Telstra were acting in good faith at all times? I think not. Imagine even contemplating taking my money for something they knew they could not possibly supply!

CHAPTER 30

At this stage the daily running of the camp was almost beyond me and my partner, Cathy, was handling the work almost entirely on her own. My self-esteem continued to sink lower and all the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, I couldn’t even think straight any more, let alone compose advertisements or talk to people about the camp.

Again and again I found myself stewing on my situation. How could this happen in Australia in the 1990’s? Wasn’t this supposed to be a democracy? How could the Liberal Coalition Government continue to ignore me? How could the lawyers get away with hiding the truth in order to prop Telstra up? I couldn’t work out which way to turn next.

Finally I decided to ask for all my claim documents to be returned to me (this was covered in the rules of the arbitration). I waited patiently for weeks before deciding to drive to Melbourne and collect them myself. I thought I had been as angry as it was possible to be but no, by the time Cathy and I arrived in Melbourne I was ready to explode. I controlled my anger though, as I walked into the arbitrator’s reception area and spoke to the arbitrator’s secretary, Caroline. Looking back now I wonder why I expected to have my request met this time: certainly none of my previous requests had been met but I suppose we can always hope. It was not to be however. My documents were not ready, Caroline informed me, and the arbitrator was not available.

My emotions, already on a short fuse, finally took over and I shouted at Caroline, demanding that she get my documents at once and reminding her that I had put in my request three months before and had now driven for five hours to collect them. “I am not leaving this office without those documents.” I told her, “Call the police if you want to, I don’t care. You have my property and I want it back now.” At last a young lad appeared from the lifts wheeling a trolley loaded with boxes of documents. He asked me to sort out which were my claim documents; I simply took the lot.

It took Cathy some time to find a parking spot near this busy city office but finally I loaded them into the car and we headed off, unaware that, among my own documents, there were some that I had never seen before. These proved to be documents that should have been forwarded to me under the rules of arbitration. And they were very, very interesting, to say the least.

Of course, in any dispute which is settled by an umpire (like an arbitration) it is almost mandatory that any information supplied by one party must be automatically circulated to the other party and this was certainly so according to the rules of my arbitration. In fact, in my case, the information had to also be supplied to the TIO’s legal counsel. Among the documents I took with me from the arbitrator’s office this day, however, I found a brown envelope full of documents and loose papers, none of which had ever been forwarded to me. This envelope contained copies of a number of letters from Telstra to the arbitrator, including one letter dated 16 December 1994, which indicated that it had been sent with three attachments:

1.Letter dated 4 October 1994 from Austel to Telstra

2.Letter dated 11 November 1994 from Telstra to Austel

3.Letter dated 1 December 1994 from Austel to Telstra

In the first paragraph of this 16 December letter, Telstra stated:

“You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.”

Clearly, at that time anyway, Austel were most concerned regarding this incorrect charging and, on page two, Telstra go on to state:

“The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.”

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? Certainly I did not receive any correspondence from him which referred to this arrangement but Austel apparently later wrote to the arbitrator acknowledging receipt of Telstra’s letter of 11 November 1994 and noting that Telstra had agreed to answer, in their defence of my claims, each of the questions put by Austel on 4 October 1994.

In their earlier letter of 1 December, Austel had indicted that a number of other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services and so it is not surprising to find them indicating their concern about this in their letter of 8 December:

“A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.”

In direct breach of the rules of the arbitration, the arbitrator did not forward these letters on to me during the arbitration.

Even more amazing, the arbitrator made no written finding in his award regarding the massive incorrect charging as shown in my claim documents. In fact, even though Telstra had notified both the arbitrator and Austel (in their letter of 11 November 1994) that they would address these incorrect charging issues in their defence, they failed to do so, and even though the arbitrator obviously knew of this promise, the arbitrator still allowed Telstra to ignore the issue completely. I believe that this constitutes a conspiracy between the arbitrator and Telstra in my arbitration but I was to uncover even more when I turned to the loose documents I had come by inadvertently. These would surely convince the devil himself that there was a conspiracy afoot. These documents relate back to the day the COT four signed for arbitration, on 21 April 1994.

As I have already explained, one of the main reasons for signing for arbitration, as opposed to the existing commercial agreement, was that Telstra’s billing system would be brought under scrutiny. The members of COT believed this was a major issue which needed to be brought to the attention of all Telstra’s customers, in the public interest.

I had been directed, you will recall, to lodge written details of any phone complaints with Telstra’s solicitors. In particular, in one of my letters to the solicitors I had shown them that I was being charged incorrectly for short duration calls on my 008 account.

On 18 June 1993, Austel wrote to Telstra regarding these billing issues. Their letter, one of many written by Austel to Telstra regarding this particular issue, follows on the next page.

On the same issue, in an internal Telstra letter dated 25 November 1993, to the Corporate Billing Directorate in Brisbane, regarding my short duration call problems, the writer states.

“Telstra does have clearly defined policies and principles for call charging and billing.

Customers will be charged only for calls which are answered
Unanswered calls are not charged

Unanswered calls include calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which ‘ring out’ or are terminated before or during ringing.”

When speaking with John MacMahon, the General Manager for Consumer Affairs at Telstra, I referred to this document, telling him that this was certainly not the case on my phone line.

Over the years leading up to my arbitration, I continually proved to Austel that Telstra were incorrectly charging RVA calls. In one instance I used my claim advisor as just one example, and provided my 008 account and Telstra’s matching data records to prove my point. Finally, because these issues were not addressed in my arbitration, Austel visited Cape Bridgewater late in 1995 to look at a further 6 bound volumes of new evidence I had accumulated to support my case. Three of these volumes, which had been submitted into arbitration, had resulted in Telstra writing to Austel on 11/11/94 to say they would address these issues in their defence.

The Austel people looked over the six volumes I had and commented that they had never seen so much evidence, presented in such detail. They appeared to actually be quite stunned. Finally they left, taking the volumes of evidence with them. Although all this evidence was returned to me some weeks later I have never had any formal recognition of my effort from Austel.

In a letter dated 6 December 1995, Austel wrote to me:

“I refer to my recent correspondence advising you that Austel had again written to Telstra regarding the issues relating to charging discrepancies concerning its 008/1800 service originally raised by you in 1994. I write to request additional information from you to assist Austel in its investigation of charging discrepancies associated with Telstra’s 008/1800 service.

Your assistance in this matter would be appreciated.”

Among the ‘loose documents’ inadvertently provided to me by Caroline I found three technical reports which had been compiled from my claim documents. One, dated 7 April 1995, was headed “Draft for Discussion Purposes Only” and written by Lanes Telecommunications; the other two documents were duplicate copies of a report compiled by DMR and Lanes and dated 30 April 1995. Or were they duplicates? They certainly looked the same; they certainly both had identical covers; they certainly both had the same date and neither of them was signed, but .... ?

Back in May of 1995, when I received my copy of this DMR/Lanes report, and needed to respond to it in writing according to the rules of the FTAP, I had asked why it had not been signed off as a complete document. The arbitrator did not respond to my question. When I found these ‘duplicates’ of the DMR/Lanes report, I dug out my copy and compared all three. Lo and behold, a number of differences showed up, all in Telstra’s favour.

Some of these differences were not apparent at first glance but one was quite clear from the start: the page numbering on one of the 40 page documents which I had not seen before sailed along sensibly up to page 27 but after that, with the exception of a page numbered 31, all the rest of the pages were also numbered 27. What on earth did this indicate? I had no idea. And there were other differences, the most alarming relating to a part of the report headed “Scope of Report” in the early draft version, dated 7 April 1995 (documents 1 and 2). Part of this section states:

“The report covers incidents and events potentially affecting the telephone service provided to the Cape Bridgewater Holiday Camp during the period February 1988 to August 1994.

SOURCE OF INFORMATION

The information provided in this report has been derived and interpreted from the following documents.”

As you can see on the following pages, the documents listed in the draft version as being sourced by Lanes are also listed in the arbitrator’s copy of DMR/Lanes final report. In my copy of the final report however, half way down the list, all the items arrowed have been added. All these additional items were my claim documents; none of them were Telstra’s documents. Apparently someone was trying to make me believe they had looked at every document I submitted but the body of the report clearly proves that DMR/Lanes didn’t assess all the documents I submitted.

On examination of these three versions of the same document the following differences become apparent:

My report listed 27 documents marked with dots, plus 7 other documents marked with dashes. These 7 items actually total 2158 separate pages; the draft report, and the arbitrator’s final version only listed 18 documents in all
The documents listed in my report are in a different order to the draft report
My report is not stamped as a draft copy
My report does not have the “Scope of Report” paragraph indicating that DMR/Lanes only assessed documents up to August 1994
According to the draft report, DMR/Lanes did not even look at any documents I submitted after August 1994 even though many of the faults I included in my claim continued to plague my business long after August 1994. In fact, even on the day the arbitrator handed down his award, 9 months later, I was still battling phone faults.

The difference in numbers of documents assessed before August 1994 indicates that not all my claim documents were passed to DMR/Lanes for evaluation. How could they possibly have correctly assessed all the faults prior to August 1994 if they only saw half my claim? I wondered, was this a conspiracy, this apparent attempt to cover up on behalf of Telstra and defraud me of a proper assessment?

The next lot of documents have also been taken from two different copies of the final report, one of which was sent to me (dated 30 April 1995). The other was given to me by the arbitrator’s secretary; apparently this was the arbitrator’s copy (also dated 30 April 1995).

The first problem with these documents occurs on the page numbered as 1 in my version and titled “Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995.” The second paragraph on this page consists of only one short sentence “It is complete and final as it is.” The second paragraph on the equivalent page of the arbitrator’s report (numbered as page 2), however, goes on to say “There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.”

Note that again, there is more information in the arbitrator’s version than there is in my version. And, again, this refers to billing problems.

Again, in the arbitrator’s copy (on the page numbered as 3), the fourth and fifth paragraphs state:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

Otherwise, the Technical Report on Cape Bridgewater is complete.”

This information is simply missing from my version of the report (page numbered as 2). Did the arbitrator and DMR/Lanes all think that I would forget about the billing issues if they didn’t remind me?

It was serious enough to discover that Telstra had not addressed the billing issues, even though they said they would; it is even more serious to discover that letters discussing this matter had been sent by Telstra to the arbitrator and to Austel without being copied on to me. If, as it seemed to me, the arbitrator actually had favoured Telstra so that this billing issue would never be addressed in my arbitration, then we must ask if the arbitrator was as impartial as he was supposed to be. All this greatly disadvantaged me, as a claimant in this matter. And then, to finally find that the technical resource team (DMR/Lanes) intended to address the billing issues but mysteriously omitted this from the final version of their report just proves my allegations that there was a conspiracy between various high-ranking people involved in this arbitration.

I returned again to the documents on pages 175 and 176, under the heading “Cape Bridgewater Documentation”, and found, in the second line on both pages, reference to more than 4,000 pages of documents which had been presented by both parties and “examined by us”. In the arbitrator’s ‘award’, however, he states that he viewed more than 6,000 documents. What happened to the other 2,000?

Let’s assume, generously, that there were, say, 400 pages of documents (out of the arbitrator’s 6,000) which were only related to the financial side of the dispute, and which would therefore not need to be assessed by the technical team. This still leaves 1,600 not accounted for. Interestingly, this is approximately the number of claim documents referred to by DMR/Lanes (in their two source information documents) as not being assessed. Could this mean that DMR/Lanes didn’t see all my claim documents?

On the last two lines of this same paragraph I found the following amazing statement:

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

This is further proof that the technical team were not provided with my list of 183 logged faults from late 1989 to early 1994. Apparently they were not provided with a copy of the further 43 logged faults which I submitted or the 70 or so letters of complaint which I also provided to support these two lists, totalling 226 logged calls in all.

Looking back now it seems obvious that there was some sort of conspiracy going on here, a conspiracy to cover up at least some of the issues I had raised in my claim. I have evidence which supports my claims that Telstra ‘bugged’ my phone both before and during my arbitration and when this information is put together with what I now believe was happening with all the incorrectly charged short duration calls on my 1800 account, a conspiracy seems the only answer. Diversion of phone calls and faxes has been explained in more detail on page 52.

Back in early 1993, as I have previously related, I was continuing to lodge complaints with Austel about the short duration and non-connected calls. An FOI document dated 23 September 1993, from Don Pinel of Telstra to Jim Holmes, Telstra’s Corporate Secretary, discusses ‘long held’ and ‘incoming unanswered’ calls of ‘4 - 8 seconds’. According to this document there was some suspicion that these were ‘diverted’ calls. Pinel commented that further investigation was to take place.

The following three incidents all relate to other situations where call diversion was highly likely to be the cause of the problem:

A hairdresser in the outer suburbs of Adelaide, South Australia, who is known to the COT group, suspected that some of her incoming business calls were being diverted elsewhere. Her problem was investigated by both Austel and the police and the conclusion was that it seemed the calls were actually going to another hairdresser. The matter was addressed by Telstra out of court.
A massage parlour operator in Melbourne who also contacted COT was another who suspected some of her incoming business calls were being diverted to her opposition. Her suspicions were later confirmed, after police intervention. Her calls were apparently being diverted to another massage parlour elsewhere in Melbourne.
In my own case, on 3 June 1994, during my arbitration procedure, I called Telstra’s fault service to lodge a complaint in response to problems experienced earlier that day by some of my customers who had difficulty getting through to my business on the phone. At the time I had a bus charter operator in my office who witnessed the following events.

I used my fax phone to phone Telstra. This equipment is on a separate line to my 008/1800 free call service which was the line I was complaining about. I asked the Telstra 1100 fault operator if she would phone my free call number and see if she had problems getting through. Moments later, while I was still holding on the fax line, there was a faint, one ring burst on my free call line. Both the charter operator and I heard this short ring but when I picked the receiver, the line was dead and so I didn’t bother to speak but simply hung up the phone. The bus charter operator has since confirmed this in a letter which was presented to the arbitrator.

A few moments after I had hung up the free call phone the Telstra operator came back to my fax phone and quite innocently announced that she had heard some-one say something about a holiday camp on the free call line. I certainly didn’t say anything about a holiday camp, so who answered the call? The operator’s version of events certainly doesn’t match my version, nor does it match the description given by the witness, so where was her call answered? Later I had my own version of the events professionally video taped and this five minute video clip was accepted into arbitration, along with other documentation supporting my claims of illegal call diversion by persons with access to Telstra’s network. FOI documentation shows that all this information was passed on to Telstra by the arbitrator but, like so many of the issues I raised in my claim, the issue of illegal call diversion was never addressed by the arbitrator.

Further information relating to this illegal phone interception and to phone bugging, lost faxes and intrusion into the private lives of COT members, is detailed at the end of this book. You will be astonished at what the Telstra Corporation has resorted to in their efforts to conceal the truth. Withholding important discovery documents in an arbitration procedure is unlawful, if these documents exist. Tampering with evidence in an arbitration (e.g. pouring beer into a phone) is unlawful. Relying on defence documents which are known to be flawed, in an arbitration, is unlawful. Phone tapping of conversations without a warrant is unlawful. Someone within Telstra must have authorised this criminal conduct. Does this indicate that organised crime exists within Telstra?

CHAPTER 31

I wondered how much more confusion and deception I would uncover among the rest of the documents inadvertently supplied by the arbitrator’s secretary.

The unethical behaviour by the FHCA project manager, when he withdrew a large section of his financial report, was firmly fixed in my mind when I uncovered a document headed “Ferrier Hodgson Corporate Advisory Working Notes.” As I read this document I pictured yet another spear aimed at my heart. Had these people set out to drive me into the ground?

The following information, from page 15 of the FHCA draft report, appears to find in my favour for once. It shows the following list of tourists visiting the Portland region between 1991 and 1994:

In 1991/92 this list shows 1,396,000 tourists, in 1992/93 this increased by 6.7% to 1,490,000 and in 1993/94 the number increased again, this time by 5%, to 1,565,000. This was the increase which I had shown in my claim documents, supported by figures supplied by the Department of Conservation and the Environment (now called Victorian Parks) who control many tourist locations and national parks in our area. These figures were also supported by information supplied by the Victorian Tourism Domestic Monitor.

In his award document however, when the arbitrator referred to tourism, he stated that he ‘had to take into account the decrease in tourism’ in my area as possibly one of the factors contributing to lost business at the camp.

The figures supplied by FHCA, Parks Victoria and the domestic tourism monitor for the Great Ocean Road region are factual figures. What made the arbitrator decide that there had been a decrease in tourism in the area?

Now, with all this information finally available to me, I set about challenging the arbitrator through the Institute of Arbitrator’s president who, because he happened to live in Western Australia, thereby caused me to spend more money on faxes and phone calls in my search for natural justice. My impression, gained from letters from the Institute’s president, was that he was alarmed at the evidence I passed to him; evidence showing the unethical way my arbitrator had conducted himself. At the time however, I was still suffering from sleepless nights as I stewed on the questions — how could a legal person such as the arbitrator hide so much evidence? How could he allow Telstra to get away with ignoring so many issues? And why? All this deception and yet it seemed no-one with any power seemed at all concerned.

One person who was expressing concern however was my local Federal Member of Parliament, David Hawker. As far back as 1992 Mr Hawker had supported me by writing to Telstra expressing his concern about the RVA and other phone faults I was experiencing and the business I was losing as a result of these faults. The General Manager of Telstra’s Australian Commercial division responded to Mr Hawker on 23 August 1993, saying:

“Mr Smith has had ongoing complaints and service difficulties over some five years. His services were initially provided from an exchange of older technology which had some faults and suffered congestion.”

My own problems with the phone service were not the only problems I spoke to Mr Hawker about; I had also alerted him to other Telstra customers in our area who were telling me they were also having problems with the phone service, not only when trying to contact me, but with their own phones as well.

So concerned was Mr Hawker that, late in 1995, before the Liberal Government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra. Senator Alston seemed to be quite concerned about the way my arbitration had been conducted.

According to my record of this meeting, Senator Alston asked for further documents. He was interested in my claims regarding the unethical conduct by various parties associated with the administration of my arbitration; he was also interested in my references to the way Telstra had ignored my claims of incorrect charging and problems with billing. My claims that Telstra had been listening in to my private phone calls during the arbitration seemed to particularly worry Senator Alston. It also seemed that, when we signed for arbitration, Senator Alston had been under the same illusions as the COT four — he believed that the arbitration would be a non-legalistic and fast-tracked process. Another Senator who had supported us along the way, Senator Ron Boswell, the National Party Leader, had expressed the same beliefs.

During this period immediately following the handing down of my arbitration ‘award’, Senator Alston appeared to also be very concerned that FOI discovery documents had not only showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, but that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the Public Domain. Telstra were, in fact, using this flawed report to publicly support their assertions regarding the high quality of their telephone network. One example of this public use of the report was the Channel Nine program “A Current Affair”.

Following a request from Senator Alston’s office I sent them more documents showing that Telstra technicians had been listening to my private calls during the arbitration process. Senator Alston’s office showed even more concern when they discovered, again through my FOI discovery documents, that Telstra continued to listen to my private phone calls for months after they had reassured the Australian Federal Police, and David Hoare, Chairman of the Board of Telstra, that they had ceased that practice. As a once-practising lawyer, Senator Alston was well aware of the implications of Telstra’s behaviour; he could clearly see what an advantage they would have when preparing their briefs and defending my claims if they had inside knowledge gained by listening to their opponent’s phone calls to his claim advisers.

How easy it is for someone with the right contacts to uncover inside information. My movements were monitored by the very corporation I was doing legal battle with and some of my important claim documents simply vanished while being faxed. How useful it must have been for Telstra to know where I was and when. And how useful it could have been if they were also able to check what information I was lodging with the arbitrator and make the most damaging simply disappear before it got to him.

In December 1994 I received FOI documents R11612 to R13587 which included questions for the Senate Estimates Committee put on notice by Senator Alston, to be answered by Telstra. Under the heading “To Telstra From Senator Alston”, document R13587 states:

“According to an ex-Telstra employee who had responsibility for security and file management in the period from 1987 until 1992, Telstra installed some computer links between its billing computers — a database system containing customer details, and computers in other organisations, ie Australia Post.”

This document then asks the following questions (among others):

“1. Could you name each and every organisation which is linked to Telstra’s billing computer?

2. Does ASIS (refer Appendix 8 & Glossary) have access to personal files kept by Telstra?

3. Can each and every one of these organisations access Telstra’s files containing billing details?

5. Could you guarantee that no Parliamentarians, who have had dealings with “COT” members, have had their phone conversations bugged or taped by Telstra?

9. Who authorised this taping of “COT” members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

(B) Of these, how may were customers who had compensation claims, including ex-Telstra employees, against Telstra?

25. An internal Telstra minute in relation to Alan Smith of Cape Bridgewater states: “Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a recorded voice announcement saying the number is disconnected. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to the AXE.”

This document, and questions asked of Telstra in the Senate by Senator Alston, make it quite clear that Senator Alston was then, and still is, aware that Telstra taped and listened in to private phone calls made by COT members who still fear that their calls are being listened to. Anyone who had access to the many, many documents I have read over the years I have been battling for justice would have the same fears.

After the Coalition Government’s victory in 1996 Senator Alston became the Hon Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate bound volume of attachments, each document indexed to support the information in the 82 page listing. A copy of this 2 volume report was sent to Senator Alston and another copy was forwarded to the Commonwealth Ombudsman’s office.

This report has since been assessed by a number of Legal experts, and others; some of the written responses follow.

Since Senator Alston was appointed to a position which gives him the power to instigate a full inquiry into the many issues raised by the Telstra / COT situation, nothing more has happened except for a letter of acknowledgement dated 4 September 1996. Even though I had alerted Senator’s staff to problems I had with the TIO, particularly in regard to his blatant disregard for the truth when he was addressing my concerns, this acknowledgement letter asked how the Senator might acquire a progress report from the TIO.

CHAPTER 32

In Chapter 23 I related the ‘beer in the phone’ story. This issue was raised for me again, on 28 November 1995, six months after my award had been handed down and almost 12 months after I had first asked the arbitrator to access, from Telstra’s defence unit, the actual T200 phone that Telstra had taken from my office for testing. This was the phone that Telstra later alleged, in their defence, had been affected by ‘beer in the phone’ which caused what Telstra called a ‘lock-up fault’. According to Telstra, this meant that the fault with my fax line was not in the network but in the phone. As I have indicated in Chapter 23, the arbitrator would not allow my forensic document researcher to see the draft of the T200 technical report. If this had been allowed my researcher would then have been able to ascertain how Telstra’s technical unit had conjured up this ‘phoney’ report.

So, when I received another bundle of late discovery documents from Telstra, imagine my surprise to find, included in this bundle, Telstra laboratory reports which showed that, while Telstra had my T200 fax/phone at their laboratory for testing, they also carried out tests to see how long beer would stay wet if it was inside the phone casing. The remarks on the report of this particular test show that, when left overnight, the beer was either almost dry the next day, or completely dry the next day. Apparently Telstra laboratory staff had satisfied themselves that beer could not have stayed wet and sticky for 12 days (the time between the phone leaving my premises and it arriving at the laboratory). Would a corporation as large and powerful as Telstra really stoop so low as to fake the ‘beer in the phone’ set-up just to defend the quality of their network?

Of course, I didn’t see this document until 6 months after the arbitrator had handed down his award but still I was incredibly excited to be proved right. I came across this information about 8 o’clock one evening and, in the heat of the moment I grabbed the phone and dialled the number for the arbitrator’s home. His wife answered and told me that he was overseas and was not due home for few days. I thought quickly. “Probably the arbitrator would have discussed at least some aspects of my arbitration with his wife,” I thought. “If I tell her who I am she may be afraid that I am trying to cause trouble. I don’t want to risk upsetting her unnecessarily, so I’ll give someone else’s name.” I quickly decided that I should use a name that would be familiar to the arbitrator; someone that he was friendly with. The first name that popped into my mind was that of the FHCA project manager.

According to my telephone account, this call was made at 8.02 pm on 28/11/95 and it lasted a mere 28 seconds.

Later, after I had calmed down a bit, I told the TIO about my exciting find; a document that I had been looking for, for so long; a document which finally proved my innocence regarding the ‘beer in the phone’ matter. I asked the TIO what he would do with this information, after all, he was the official administrator of the arbitration and this Telstra document showed that not only did Telstra use the flawed BCI report in their defence, but now we could prove that they also used a fabricated T200 report as well. This of course was a very serious matter. Tampering with evidence in a legal arbitration is a chargeable offence.

I also freely told the TIO that I had tried to contact the arbitrator to pass on this news, explaining that I had rung at 8 pm on the night of the 28th because I had only then just uncovered the laboratory documents which I was convinced proved serious unlawful behaviour: someone must have introduced the ‘beer’ into my phone after it was taken from my office. Surely tampering with defence material was a matter that needed to be looked into at once. I explained to the TIO that the arbitrator had been overseas when I rang and I explained also why I gave Mrs Hughes the FHCA project manager’s name instead of my own, so as not to alarm her.

The TIO’s response was a flat statement that my arbitration had run its course and he did not intend to involve his office in any further investigation. He added that my best option was to go to the Supreme Court of Victoria (as if I had the resources to do that!).

This incident is one which added to my concerns about the TIO because some time later I received a letter from the President of the Institute of Arbitrators (Aust), Mr Laurie James, with a copy attached of a letter Mr James had received from the TIO. Apparently, after I had spoken to the TIO about my attempt to reach the arbitrator at his home, the TIO wrote to Mr James, relating an entirely different version of the story. In his letter to Mr James, the TIO stated that I had rung the arbitrator’s home at 2 o’clock in the morning (he also noted that I had used a false name, which I don’t deny). This letter from the TIO could well have been interpreted as questioning my motives. Although the TIO didn’t actually ask the question, it did infer that there was a question as to why would anyone make a phone call at 2 am, except in an emergency (and this wasn’t an emergency really) or if the caller was trying to be intimidating. The TIO was well aware of how badly I had been treated by the justice system and yet still he seemed to be trying to blacken my name. Why else would he take a perfectly innocent incident and try to turn it into something sordid?

Furthermore, what gave the TIO the right to write this letter in the first place? The TIO is supposed to be unbiased: how could he sit down to write this letter knowing that he is about to record a completely different story to the truth? He must have known that his correspondence would bring my character into question. If he was prepared to do this in my arbitration, it also raises questions about his behaviour in the arbitrations which are still going on for other members of the COT group. Who is he actually supporting here, the Australian public or the telecommunications carriers?

Another interesting question raised by this letter to Laurie James: the TIO forwarded a copy to the arbitrator at the time. Surely the arbitrator would automatically check with his wife for her version of the incident? And, if he did, I believe that his wife would agree that I rang at 8 pm and not 2 am, and I also believe she would say that I was perfectly polite. Why has the arbitrator not come forward with the true facts?

At least Mr James was giving me the opportunity to defend myself to him. And I did, and, because the TIO’s letter had also been copied to the arbitrator I believed that he would also confirm that I had spoken quite politely to his wife when I rang, and I also believed that he would also confirm that I rang at 8 o’clock at night, not 2 in the morning as the TIO had stated.

If we return to pages 131 and 132 in Chapter 23 you can see that I have proved, beyond all reasonable doubt, that someone within Telstra tampered with my Exicom T200 touchphone after it left my office to be examined at Telstra’s laboratories. The TIO should have taken this into consideration before he wrote to Mr James. It is even more alarming, as I have also explained on pages 131 and 132, to discover that Telstra was once again prepared to sign a Statutory Declaration covering the authenticity of their report regarding ‘beer’ in my phone when they knew the report was unlawfully constructed. On pages 208 and 209, and also in Appendix 5, I show that one of Telstra’s technicians also knowingly signed a false Statutory Declaration in Telstra’s defence, in relation to my Mitsubishi fax machine. In this Statutory Declaration the technician blames ‘customer operator error’ for the continuing faults experienced with this equipment, even though he was well aware that the faults were actually network related.

FOI Document D01026, in Appendix 9, directly relates to the Exicom T200 touchphone problem. This document shows that not only were Telstra clearly aware of moisture problems associated with this brand of phone but they were also aware that the moisture problem created a short duration/incorrect charging fault to occur on their customer’s accounts. These were the very same short duration/incorrect charging faults that both my arbitrator and Telstra conveniently chose not to address in my arbitration, even though Telstra advised Austel (11/11/94) that they would address both problems as part of their defence of my arbitration claims.

Even more disturbing, from document D01026 it seems that Telstra re-deployed the phones they knew were faulty and returned them back into service to other unsuspecting customers. It would be interesting to ask Telstra who in their employ had the meteorological expertise to decide where these moisture prone phones should be sent. Cape Bridgewater, as one example, is a known moisture prone area and, as a result of my continual complaints, the RCM exchange at Cape Bridgewater was finally sealed so that moisture wouldn’t affect the copper components etc. inside this un-manned exchange.

If Telstra does in fact have a meteorological wizard on their staff who was deciding where these faulty phones would be best sent, I wonder if it occurred to him to contemplate that atmosphere inside the buildings where these phones were being installed. I can imagine there would be a considerable moisture content in the air in, for instance, a fish and chip shop, a bakery, an industrial kitchen, a restaurant or a heated swimming pool etc. The humidity in all these places would be higher than other locations in the same geographical area. I also wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers and how many of these customers have been continually incorrectly charged for calls they did not receive -- as I was for so long.

Another interesting point for discussion is the legality of the re-distribution of products known to be faulty. Regardless of how the Australian Trade Practices Act looks at such a situation, according to point 1 of FOI document D01026, Telstra decided that their faulty phones would ‘still have to be deployed in areas of lower moisture risk.’ It seems that the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia as well as being exempt from a number of Acts of Parliament (or so it seems).

It also seems that Telstra, their agents and their employees are exempt from being charged for carrying out illegal activities in Australia and I certainly hope that no Australian business executives expect to be protected from Telstra’s thuggery by our Government: they certainly haven’t protected me, or a number of my associates.

CHAPTER 33

When the TIO and his legal counsel first began to pressure the COT four into abandoning the commercial process, the FTSP, and signing for arbitration, the FTPA, no-one bothered to tell us that the appointed arbitrator was not qualified (graded) by the Institute of Arbitrators. This meant that, technically, he was not fully qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This was just another part of the comedy of errors that we had become caught up in.

In 1996 the President of the Institute wrote to me, confirming our belief that the appointment of a non-graded arbitrator was ‘always a risk’. To add insult to the injury of this situation, I was later informed that the arbitrator, while involved with the COT cases, actually sat, and failed, his grading examination which, if he had passed, would have seen him admitted into the Institute’s register as a Graded Arbitrator.

This information was all passed to Senator Alston and the TIO as it came to light and yet, still, no-one has been able to explain why such an un-graded arbitrator was chosen to oversee such a vast process.

So, the arbitrator was not fully qualified, but at least, we thought, we always had the TIO to fall back on and the TIO was an unbiased observer in this process. Well, once again, we discovered (too late to help me) that we were wrong. The TIO’s office is supervised by a board and the members of the board are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra. In fact the very person in charge of authorising the supply of discovery documents to the members of COT under FOI, is also the Telstra representative on the council of the TIO’s office.

This has been a highly legalistic arbitration, which has so far cost Telstra more than 18 million dollars to defend. What chance did the COT’s have when we had to rely on Telstra documents to support our claims and the person in charge of distribution of those documents also sat on the council of the TIO? This gave Telstra private access to the TIO himself, without the need to include COT members. No wonder we felt so hopeless.

As more and more documents arrived I found it harder and harder to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, particularly in relation to the ‘beer in the phone’ episode but also in relation to other incidents. Why, I wondered, did the arbitrator not make any finding regarding lost faxes, both before and during the arbitration process? These lost faxes included valuable evidence but they had somehow been lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and by Telstra’s defence unit. These two episodes became the focus for me and the driving force behind my persistence in trying to uncover the truth: I still couldn’t understand why the arbitrator had apparently not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol in the fax/phone. Wasn’t it obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth; the truth that Telstra’s lines were causing the problems?

The only way any of the members of COT could prove their cases was by using documents buried in Telstra’s archives; how likely were we to get our hands on them?

During question time at a Senate meeting on the environment, recreation, communications and the arts, on the 24 June 1997, Telstra were asked a number of questions regarding their involvement in the supply of discovery documents to the COTs, under the FOI Act. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s defective administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. Obviously the repercussions of this defective supply of documentation had severely disadvantaged me when I was preparing my claim. Months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Among all these documents I often found particular items that would have been most useful in supporting the information in my claim. By then, of course, they were of no use any more.

The public record of Parliamentary proceedings, ‘Hansard’, shows that, at the meeting on 27 June 1997, a Telstra whistle-blower, Mr Lindsey White, made a number of interesting statements to the Senate, including a report relating to the group he worked with while assessing the COT FOI documents. According to Mr White, this group was originally housed in the same building as Telstra’s solicitors. He said that, in the early days of his involvement, there were four technical specialists and about six people from Deloitte’s (Telstra’s accountants) helping the Telstra team. The documents that were finally forwarded on to the COT members all travelled through this process first, he told the Senate.

According to the Hansard report of this question time, the following exchange then took place:

“Senator O’Chee, National Party, asked Mr White — “So Telstra had masses of documents relating to each of these cases. Your job in this team was to interpret those documents and explain to — what lawyers — what those documents meant?”

Mr White replied — “They were committed to an Excel file. My job was to determine what the documents were, who they were from, who they were to, what value they were. They were put on an ‘Excel’ file and that was put on the Telstra mainframe system. The legal people used them; Deloitte’s took what they wanted out of it, I would imagine. What happened to them after I had deciphered them, I do not know.”

Senator O’Chee then asked — “Are you aware of any of those listings, those explanations of the FOI documents, ever being made available to the complainants?” To which Mr White responded — “It was not part of my responsibilities.”

Certainly, in the time leading up to my arbitration, or during the arbitration itself, I never received any copies of any Excel file lists associated with my FOI claim documents. These documents were not forwarded to me until TWO AND A HALF YEARS AFTER the arbitrator had brought down his findings.

Still the TIO and Senator Alston continue to cover up the unethical way in which the COT arbitrations were handled.

But, back to the Senate debate on 24 June 1997. The Shadow Minister for Communications, Senator Chris Schacht, raised the question of the $18 million that Telstra had paid out in legal fees during the COT arbitrations. In relation to the $1.74 million that the COT claimants had collectively received so far, he asked Graeme Ward, Telstra’s Group Director - Regulator of External Affairs,

“The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.”

Senator Schacht later added:

“Yes, but you went through a process of hanging people out to dry for a long time.”

After this statement from Senator Schacht, Senator Carr, Labor, commented to Mr Ward:

“Is it not the case in regard to the particular matters I raised regarding Alan Smith, that your own advice in documents that I have seen — they purport to be from the DMR Group Inc, Lanes Telecommunications Ltd, dated 30 April, I think it is their document, I am not altogether certain so please do not let me misrepresent the matter. But I have a document here, headed up “TELSTRA SECRET”, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?”

This question was answered by Telstra’s Ted Benjamin who had been in charge of the COT arbitrations and who, as mentioned previously, was also a member of the counsel to the TIO’s office. Mr Benjamin replied:

“There were negotiations held with Mr Smith before the matter went into arbitration. We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.”

Mr Benjamin, however, was one of the people who, back on 1 October 1993, had received a high priority e-mail, later to become FOI document A04483, from Greg Newbold, also of Telstra. This e-mail related to an article which was due to be printed in the Melbourne Age Newspaper on the following day. The e-mail stated, in part:

“ Ben Potter is to publish a story concerning Alan Smith who’s called for a public jury to hear his complaint. If we win — he shuts up! If he wins, the WFB A D Hoar resign. Potter is aware that this is just a media stunt given the extensive initiatives currently under way to resolve the COT matters.

Am currently discussing matter with J Holmes prior to responding to Ben Potter, who rang me with the news.

This will blow away or certainly diminish Mr Smith’s call for a public jury to solve his complaints.”

Mr Benjamin also received a copy of another e-mail from the same Greg Newbold (FOI A05254). This document, dated 17 November 1993, referred to a question being raised by Canberra Liaison Group regarding the “merits/demerits of holding back the Bell Canada tests — information for a ‘cleansing’ programme after the mess of the Coopers and Lybrand Report.”

It is interesting to note that at a Legislation Committee meeting in the Senate on 27 February 1998, Mr Benjamin admitted to Senator Bill O’Chee that he was aware that Telstra had falsified defence documents during another COT arbitration. It appears that, so far, very little has been done in response to this admission.

In my opinion, other similar documents show that Ted Benjamin, COT co-ordinator and supplier of our FOI discovery documents, was well aware of many of the different aspects and different issues surrounding our case. This does not seem to be the impression he gave to the Senators.

Back about the middle of 1993, with phone faults continuing to plague my business, I had asked that an independent person be appointed, perhaps by Austel or the Government, to take over my office for a period of one week. I said at the time that, if that person could survive just one week with the phones in my office without going ‘nuts’ I would be amazed but I would walk away from the whole dispute. On the other hand, I suggested, if this independent person found that my complaints to Telstra were valid then Mr Hoare, the Chairman of the Board of Telstra, should take over responsibility for seeing my case through to the end. My suggestion was not taken up.

Later we discovered that there had been a variety of problems at the Cape Bridgewater exchange which no-one was aware of, at the time. The first was that Telstra technicians had not insulated the exchange and moisture was causing some of the problems I was experiencing. The second problem was caused because the same technicians who had installed the RCM in August 1991, had also forgotten to connect the fault alarm (as discussed previously). Because the Cape Bridgewater exchange was unmanned, the technicians at Portland relied on this alarm to let them know if there were any problems. Obviously, if the alarm wasn’t connected, the technicians at Portland didn’t know of any of the faults that were occurring. Finally, heat in the unmanned exchange was creating even more problems. Much later a local technician discovered that the RCM system 1 failed when the ambient temperature reached 74ºF or 23ºC. Once this problem was discovered, a cooling fan was installed.

Mr Benjamin’s statement that Telstra had been unable to reach a final settlement with me before going to arbitration infers that I was stubbornly refusing to negotiate and that my stubbornness created the need for arbitration. In fact Austel’s General Manager for Consumer Affairs at the time, Mr John MacMahon, was well aware that I was actually pushing for a commercial assessment, and I had been pushing for this from the very beginning. The last thing the COT members ever wanted was a legal process. It is clear from many of the FOI documents I now have however, that Telstra were only interested, from the start, in forcing the COT members into a legal process, fully aware that, even if we won our cases, the cost to each of us would deliver a blow which, in the end, would mean that our group would be beaten by the enormous costs involved in mounting a legal case, while Telstra just continued to dip into the public purse.

There are still many questions waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has also been attempting to extract replies from Telstra on my behalf. In one instance I asked the Commonwealth Ombudsman’s office to supply a copy of a letter from Telstra to my arbitrator on 25 January 1994 and copies of subsequent fax documents sent by the arbitrator to Telstra on 11 February 1994. In response to a request from Ms Phillipa Smith, the Commonwealth Ombudsman, Telstra wrote that they had located the documents in question in a file belonging to a past senior Telstra executive. They then forwarded the required letters on to Ms Smith. This was a small win, but it was far outweighed by the documents which were never supplied. For instance —

Early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When Ms Smith passed this request on to Telstra she received the following reply:

“Telstra has been unable to locate Mr Black’s further general files which include copies of the correspondence received from Hunt and Hunt in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ.”

So, it seems that everyday letters can be located but important evidence, relating to a legal process such as my arbitration, were lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules which the members of COT signed, were actually not so independent after all.

Many documents mysteriously disappeared and many organisations disassociated themselves from my arbitration over the years. When I raised issues with the Institute of Arbitrators in a letter dated 18 January 1995, I was advised by the then President of the Institute that:

“The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.”

To this day I believe that he was probably told that, but I have evidence from the TIO’s office that, in fact, at the time of the FTAP, the TIO and my arbitrator stated in writing that the then President of the Institute helped draft some of the rules of the arbitration. This man is now a County Court Judge.

This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no-one seems willing to explain why so many of my claim documents disappeared during the process. When I found out that the technical resource unit only assessed my phone and fax faults from February 1988 to August 1994 I became even more convinced of a conspiracy of immense proportions; a conspiracy not only involving the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra, people who had the power to hide evidence. Either my faxes were being intercepted en route to the arbitrator’s office, or the arbitrator’s office was not passing them to Telstra’s defence unit so they could be addressed as part of the arbitration procedure.

It has been stated by Telstra, their lawyers and a number of independent technical experts that, between 26 May and 19 August, 1993, because the malicious call tracing equipment locked my 008 line up for ninety seconds after the completion of each successful call, no incoming call could have been answered in this ninety second time. This proves, of course, that at least some of my calls were answered somewhere other than at my business. According to Telstra’s own CCAS data at least forty separate incoming calls were diverted during this particular period, without including Telstra’s test calls. So, were my faxes, originally intended for the arbitrator’s eyes only, also ending up at this unknown location?

How many Australian businesses have lost out to aggressive and unexpected take-overs when they were in a vulnerable position? How many of these businesses were surprised by the take-over bid because they believed no-one knew their situation? How many were hijacked because someone had access to their telephone conversations?

How easy has it been to target my business, under the nose of the Government? How many legal battles in Australia have been open and shut cases with clear evidence to support a win and, at the last moment, the case is lost because the opposition has unearthed sensitive information? How much information, trusted to the Telstra network by Australian citizens and businesses, believed to be a private exchange of information between two people only, is actually being highacked via the telephone network?

As an example, in my case alone, Telstra have listed the documents they received as part of my claim in arbitration. This list is forty-three documents short of the number that I forwarded to the arbitrator to be sent on to Telstra’s lawyers. Even the most unscrupulous arbitrator in the country would not withhold this much claim material. So -- where are these documents?

Documents lost during a legal process is not a new experience for the Telstra Corporation as the founder of the Australian Internet Web site, ‘CyberJustice’ (www.cyberjustice.com.au), also found. John Tuczynski was originally the director of his own telephone salvage company, Liberty USA Pty Ltd. In 1991 Liberty began purchasing used telephone equipment from Telstra. In mid-1992 the company entered into a written agreement to purchase all Telstra’s recovered T200 telephones and, in the following years, they purchased some 400,000 of these second-hand telephones, for reconditioning and resale to overseas markets. The company became quite successful then, suddenly, the supply of the T200 phones dried up.

John Tuczynski discovered that the Telstra officer he had been dealing with had left Telstra and set up his own company in opposition to Liberty. The new bloke on the block, ex-Telstra, then somehow managed to secure rights to purchase almost all the popular T200 telephones himself. So few were left for Liberty that the business was no longer viable. Further, those few that were left were not available to Liberty at a competitive price. Telstra sold these used phones by the tonne and, according to Federal Court documents, the new bloke purchased 472,426 tonnes at a total cost of only $75,588.16. If Liberty had been able to purchase the same quantity, they would have had to pay in excess of $300,000. Quite a bit more than the $75,588.16 paid by the opposition.

Bravely, Liberty USA Pty Ltd, a small family business, believing in the Australian Justice System, decided to take the matter to the Federal Court. International observers who have since read the transcript of the court case are lost to understand what went wrong. No-one can actually explain how Telstra won the case. Even the trial judge commented that this ex-Telstra ‘new bloke on the block’ ‘has been involved in conduct which may be the subject of the infringement of some Commonwealth Law (and) Statutory provisions of a criminal nature which has been infringed.’

Telstra could apparently not locate the invoice, or any accounting records, which should have covered a $100,000:00 bank cheque from Liberty. Although a hand written ledger had been kept to record the sale of used equipment, even this pre-nineteenth century record could not account for the missing $100,000:00 bank cheque. Even the trial judge referred to the ‘surprisingly primitive accounting system for an organisation like yours.’ (ie Telstra). Naturally John agreed!

For years Liberty has repeatedly asked for an invoice for this $100,000:00 payment but it has never materialised.

Liberty’s story continues later in this book, on page 218.

In my case, even more than lost faxes, the lost incoming phone calls add up to an awful lot of lost revenue. Although some of my customers have been returning annually for more than ten years, I still can’t afford to loose forty calls in three months -- forty prospective new customers. Perhaps these people are now regularly visiting another holiday camp somewhere -- who knows? What we do know, however, is that so far the Australian Government seems powerless to tackle the ‘big brother’ of Telstra’s corporate management team.

In Chapter 34, on pages 196 and 197 you will see how much our present Government cares when a small business operator highlights the dangers of documents lost in Telstra’s network. If I was representing the Ford Motor Company, or BHP, or one of any number of other multi-national companies in Australia, I am sure these complaints would have been investigated long ago.

CHAPTER 34

My patience, already stretched past normal endurance, snapped. Where had all the documents relating to problems after August 1994 vanished to? After all, these problems continued right through to July 1998 — people were still writing to me describing faults they had encountered when attempting to send faxes to me or when I attempted to send faxes to them.

Around June 1998 I received letters from five different businesses, listing the fax problems they had encountered. These letters were all passed on to the TIO’s office. In one of these letters, from Chrissy Hawker’s Secretarial Service in Portland, Chrissy listed the problems she had encountered, including:

“blank paper coming through in the middle of transmission
a strip of approximately 3cm coming through
distorted figuration that looks like a stretching of letters appearing at the end of a page
a page with black lines all the way as described above.”

Chrissy went on to say:

“As you can appreciate, being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.”

In this letter, dated 30th July 1998, the Australian Federal Police tell me that they are unable to help in any way.

If the Federal Police can’t understand the importance of 43 faxes not reaching the arbitrator then what other avenues are left to have these matters correctly investigated? For example, if documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse and no-one will investigate.

In the next letter, dated 18 August 1998, the Attorney General notes that he “cannot be of assistance to you in this matter.” If the Attorney General’s office is not concerned about the loss of legal documents while in transit via a fax machine, and the Federal Police can’t help either, then who can?

I believe that piracy of faxed documents may well be rife in Australia, not only documents relating directly to Telstra, but also documents associated with business in general.

On the 1st July 1998 I wrote again to the Deputy Telecommunications Industry Ombudsman, Mr Wally Rothwell, relating my concern that not only were some of my faxes being ‘lost’ in transit, but others were being disfigured and made unreadable. I copied on to him a number of documents which I had received back from the arbitrator’s office when they returned some of my claim documents to me after the arbitration had been completed. These documents were later forwarded to both the Federal Police and to the Attorney General as well as to the Minister for Justice. These were documents which had been originally faxed to the arbitrator but which had arrived in his office as only half pages or as blank pages. Even so, my Telstra fax account shows that I was still charged for sending these illegible documents. The TIO’s office still refuses to address these issues.

Bank statements which I faxed to Ferrier Hodgson arrived at their office with no detail, although still clearly bank statements. In fact, some of these mostly-blank pages have a hand written note indicating “Smith’s Bank Statements”. I have asked the TIO to find out whose handwriting it is but, once again, I have not received a reply.

When I saw these strange faxes I asked the TIO how FHCA could possibly have assessed my financial position correctly during their assessment if some of the documents I sent them arrived minus the information they needed for their valuation. Again — no answer from FHCA.

Back on 22 April 1994 Austel had also received blank pages from my fax when I attempted to send them copies of my Telstra accounts showing massive incorrect charging. When I checked the accounts covering the 22 April it was clear that I was charged for many minutes of transmission time from Cape Bridgewater to Austel in Melbourne. Even Austel’s fax journal list registered that these blank pages took minutes to arrive. I have since tested this situation by sending blank sheets to a Melbourne address. They took only 10 to 12 seconds to go through.

One interesting aspect of these ‘blank pages’ which arrived over the years, was a small symbol in the top right hand corner of each page which I have pointed out to the Federal Police, the Attorney General and other people. On 29 June 1998 my solicitor also received 2 blank pages from my office. These two pages both had strange, square symbols, not exactly the same as the earlier ‘blank page’ symbols, but not much different either. So whatever happened to my faxes during the arbitration process seems to still be happening.

Another fax fault which I spoke about during the arbitration related to the TIO’s legal counsel who attempted to send me a copy of the arbitration rules. In this instance I was the one to receive pages that were blank, save for a smaller version of the mysterious ‘fax symbol’. By that stage I had already complained that these fax problems — the pages with only the ‘fax symbol’ — had only started to occur once I signed the original commercial process, the FTSP and that my accountants, my solicitors and various other advisors had all received these strange pages.

It is interesting to note that, after this, I didn’t see a full copy of the FTAP rules until I signed them on 21 April 1994. Could it be that my copy of the rules of the arbitration had been lost because of these fax problems? Like various Senators, I was misled by the TIO and his legal counsel. The Senators and I believed that the rules were non-legalistic and so I signed without seeking a legal opinion. Once again my trust in the TIO let me down.

A letter dated 21 June 1996 from Telstra, talks about providing copies of ‘all the FOI documents and correspondence’ which they received ‘from Dr Gordon Hughes from 1 January 1994 to 30 April 1994 and from 1 September 1994 to 31 May 1995’ regarding my FTSP and FTAP. This statement indicates that they did not provide copies of any correspondence received from the arbitrator between May and August 1994. Even though I have requested this information under FOI, Telstra insist that there are just too many documents. It is however interesting to note Telstra’s reference to ‘all the FOI documents and correspondence’ when looking at the following listing of faxes which I sent to the arbitrator. This list has been taken from my phone account and it shows that 43 more faxes left my office for the arbitrator’s office than those which Telstra say they received from the arbitrator. Where are these 43 faxes? And, why were they not addressed by Telstra in their defence of my claims? And, why were they not assessed by the resource units attached to the arbitration?

Over the years I have written more than 800 letters to a wide variety of people including the Treasurer, the Prime Minister and many others. Because I have not been able to secure help from any of these sources I had no other alternative but production of this book, thereby breaking the confidentiality agreement I was coerced into signing.

I have also written to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of all the ‘missing’ 43 claim documents, under the rules of the arbitration which Telstra and I both signed.

Some very interesting points raised in this book relate to:

1. documents not received by the arbitrator from me during the FTAP

2. documents not received by me from the arbitrator or the TIO’s legal counsel after the completion of my arbitration.

In relation to this, points 6 and 7.2 of the FTAP rules state:

6. A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.

7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (“the Claim Documents”) in support of that claim.

And, at point 25, the rules state:

Return of Documents after Arbitration

25. Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

The FTAP rules are quite clear: all the material that I submitted to the arbitrator during the procedure was to be sent on to Telstra and then to the TIO’s legal counsel (who had been appointed as the special counsel). This meant that they would have copies of everything I sent to the arbitrator whether I sent it through the mail or by fax. Telstra’s list of documents which they say they actually receive from the arbitrator did not include 43 faxes however, even though I was charged by Telstra as if these faxes had arrived at the arbitrator’s office. Telstra’s list of documents also did not include a number of bound copies of documents which I had sent through the mail.

Under the rules (point 25), I should have received back from Telstra’s defence counsel a complete copy of all my claim material (including the elusive 43 ‘missing’ faxes). So far the TIO has not instructed Telstra or their legal counsel to supply me with these ‘missing’ documents.

The only conclusion which I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place. If this is so, then it is pointless to direct them to return these documents since they haven’t got them now and they have never had them. One can only wonder why the TIO did not follow his ‘duty of care’ when administering my arbitration.

In an effort to retrieve ALL my claim documents I have contacted:

Senator Richard Alston, Minister for Communications
Senator Amanda Vanstone, Minister for Justice
The Hon. Daryl Williams, QC, Attorney General
The Hon. Peter Costello, Federal Treasurer
and, of course, the TIO.

All these people have been asked to instruct the parties involved in this process to please return my documents — ALL my documents, not just a few of them.

The TIO had a duty to act impartially: the members of COT agree that the evidence we have indicates quite strongly that he didn’t act impartially when dealing with COT issues.

According to a reliable source, both Warrick Smith and the Hon. Senator Richard Alston visited Atlanta in the United States during the Olympic Games, with their fares and accommodation paid for by Telstra. Although, in my opinion, there is nothing illegal about this, it does seem to me to raise questions about impartiality. After all, both these men were involved at a high level in a process (the COT versus Telstra issue) in which Telstra was a major player. I can’t understand why they weren’t doing everything they could to be clearly seen as totally impartial. If I had been in Warrick Smith’s shoes, or Richard Alston’s shoes, I would certainly not have accepted such a trip from Telstra: my conscience would not have allowed me to accept such a gift, knowing that the COT members had been treated so badly by Telstra in their quest for justice.

Warrick Smith, when he was the TIO, had forced the four COT’s to abandon a perfectly workable commercial assessment process (the FTSP) for an arbitration procedure which the TIO and his legal
counsel had incorrectly assured us would be non-legalistic. The administrator of the arbitration procedure (the TIO) did not carry out his duty of care to ensure that the arbitrator he commissioned was suitably qualified to preside over such a complex process as the COT arbitrations. From the perspective of the TIO, the Minister for Communications and others involved in drawing up the procedure, this should have been seen as a disaster from the very beginning. COT members have been advised by the current TIO that the rules of the original arbitration process were drawn up by the arbitrator in consultation with the then president of the Institute of Arbitrators Australia, who is now a County Court Judge. The presidency of the Institute changes annually and it is alarming therefore for us to later be advised, first by Mr Laurie James, when he was president, that:

“The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself .... ”

and then later, in a letter dated 10/9/96 to be advised by another president, Mr J Muirhead, that the Institute was not asked to supply a graded arbitrator when the COT arbitrator was appointed. In his letter, Mr Muirhead goes on to say that “there is always a risk” when using an arbitrator who is not correctly graded.

Since one of the two people drawing up the rules of the arbitration was, at that very time, president of the Institute of Arbitrators, didn’t he have a duty to alert the TIO to the fact that the person selected to handle the arbitration was not sufficiently qualified to do the job correctly? Remember, the arbitrator actually sat for his exams for this qualification during the arbitration procedure, and failed!

Over the many years I have been involved in this debacle, the COT members have continually ensured that Warrick Smith, Richard Alston and Amanda Vanstone (Minister for Justice), have all been sent up-to-date information which supports our various claims. In my case, I have provided documented proof, again and again, that my arbitration was not carried out according to the principals of natural justice.

As previously mentioned, one of the many issues which have been raised with these three people relates to the completed financial report, prepared by Ferrier Hodgson Corporate Advisory. The project manager who produced this report had been appointed to assess what effect Telstra’s defective supply of service had on my financial losses but, on instructions from my arbitrator, this project manager withdrew a large section of the final report, including all the figures showing how FHCA arrived at their final assessment. Both the project manager and the arbitrator must have been aware that removal of this information would seriously disadvantage my forensic accountant in the preparation of his reply: the missing information meant that he had no way of knowing how FHCA arrived at their findings. Not only were Warrick Smith, Richard Alston and Amanda Vanstone alerted to this situation, but the issue was also raised with the Hon. Daryl Williams, QC, the Attorney General.

All these people were also alerted to the fact that this same company, FHCA, were advising the Government and also overseeing the investigation into Christopher Skase’s financial situation (at the time, Christopher Skase was a fugitive from Australian justice and living in Spain). If FHCA could be influenced to hide their calculations in my case, could they be influenced to do the same in other, larger cases? We have to wonder too, about the earlier Pyramid matter that FHCA also advised on.

Although I understand the position the FHCA project manager found himself in, I cannot condone his actions in withdrawing information from the finished report, at the request of the arbitrator. We must also seriously question FHCA’s ethics in allowing this situation to remain in place. Why didn’t they raise the matter of an arbitrator influencing the outcome of their investigation? If such a highly regarded organisation can be swayed to change a completed legal report then it leaves doubt about how often this could happen in the future (as well as how often it had happened before!).

Lost documents and changed reports have plagued my arbitration from the beginning and the Australian Broadcasting Corporation (ABC) seemed to echo my feelings in their press release of 20 September 1998, which was headed “QAI says Telstra hid report”. In this press release, the ABC go on to say:

“A prominent Australian telecommunications company has accused Telstra and the Federal Government of a cover-up for failing to make public a report on billing problems at Telstra.

QAI Australia Limited is suing Telstra for $14 million in damages, and is attempting to get a copy of the report, commissioned by Communications Minister Senator Richard Alston, through the Freedom of Information Act.

The Government has agreed to release an edited version of the report, but Telstra has appealed against this decision.

QAI’s Managing Director Jon Grunseth says it should be released.

“If the report is not material, if it has little relevance or significance, why the big secret?” Mr Grunseth said.

“What we have here in my view is something that’s akin to a fairly substantial cover-up, so if it is harmless, release it.”

On 17 June 1998 a letter arrived at my office, from Senator Alston’s office, regarding my claims that neither Telstra nor my arbitrator addressed the incorrect charging which I included in both my interim submission and in my final claim documents. The Minister’s letter stated, in part:

“The TIO is currently investigating your claims of overcharging on 1800 numbers. It is also investigating the disconnection of your gold-phone service.

The Government has no jurisdiction to intervene in matters being examined by the TIO.

The TIO scheme applies in addition to the general rights consumers of goods and services have flowing from contract law and forms of consumer protection such as under the Trade Practices Act 1974, and does not take away from those existing rights.

A complainant may elect within twenty-one days whether or not to accept the decision of the TIO. In accepting a decision, a complainant releases the member carriage service provider from all claims, actions etc. in relation to the complaint.

In the event that the complainant does not accept the decision of the TIO, he or she may elect to pursue another forum. The member is then fully released from the TIO’s decision.”

As I have said, I received this letter on 17 June 1998. At the time of writing, it is December 1998 and still I have not heard what the TIO intends to do regarding the incorrect charging on my 1800 line. I have recently been advised that the TIO sought legal advice on this matter six months ago.

Senator Alston’s office also mentioned the issue of the disconnection of my gold-phone. Telstra disconnected this phone in December 1995 and it remains disconnected up to the present day (December 1998), so I have now been waiting for three years to have this issue resolved. How much longer do the Communications Minister and the TIO expect me to wait? My customers continue to complain about not having easy access to a telephone when my office is locked for the night. Are we really living in the democratic society that our Prime Minister keeps referring to?

According to a Hansard report (page 4472), on 30 November 1995, the last Senate sitting before the Liberal-National Party Coalition won office, and therefore the last sitting before Senator Alston became the Minister for Communications, Senator Alston helped prepare a motion proposed by Senator Ron Boswell, the National Party Leader in the Senate. This motion stated:

“That the Senate calls on the Minister for Communications and the Arts to establish an independent inquiry into the behaviour of ’Telstra’ in respect of the resultant costs to COT members of the extensive prolonged and excessively legalistic arbitration process.”

This motion was not opposed in the Senate by the then Labor Government but, now that Senator Alston has the power to carry out his own motion of three years ago, there has still been no inquiry, my gold-phone still remains disconnected and the TIO is still considering his options.

In the last paragraph of the letter which I received on 17 June 1998, Senator Alston’s office states:

“The Government has no jurisdiction to intervene in matters being examined by the TIO. The Minister also wrote to Mr David Hawker MP as a result of representations you made to his office. The Minister has informed Mr Hawker that it is inappropriate for the Government to intervene in this matter, particularly while it is still under investigation by the TIO.”

and yet this same TIO wrote to Mr Hawker at about the same time, advising Mr Hawker that I had only just raised the issues of incorrect charging on my 1800 service. In response to this statement I was able to supply Mr Hawker with a copy of one of the first letters I had written to the TIO regarding incorrect charging: this letter is dated 3 September 1995. I also sent Mr Hawker copies of another ten letters which I wrote directly to the TIO, the last dated 31 October 1995 (making 11 letters to the TIO between 3 September and 31 October 1995 — all relating to incorrect charging). How the TIO could possibly think I had ‘only just’ raised this issue, in 1998, is beyond understanding — I have continued to write to him regarding this matter ever since. According to records compiled by my secretarial service, I have actually written over 120 letters to the TIO in all; most of them related to incorrect charging.

The TIO himself actually replied to some of these letters. One of his replies, dated 28 November 1995, stated:

“The resource unit have provided clarification of the reason for deletion of references to a potential addendum on possible discrepancies in your Telecom bills from the final technical report as follows.

‘At a late stage of the arbitration process, at the time of preparation of the technical evaluation report, there were discussions about billing issues which had been raised by Mr Smith. A draft of the technical evaluation report therefore included references to the billing matters, which it was thought might require further work beyond the time of issue of the report.’ ”

Later in this same letter, the TIO goes on to say:

“A second matter involved 008 calls. Again this matter was current at a late stage (April 1995) of the arbitration process. This matter concerned possible over-lap in the records of 008 calls made to Mr Smith, and for which he was billed.”

On 17 February 1998, by registered mail, I sent the TIO a 49 page bound submission detailing examples of incorrect charging issues. This submission included copies of some pages taken from the transcript of the oral hearing conducted on 11 October 1994, between Telstra, the arbitrator and myself. I reminded the TIO that a representative from his office also attended that oral hearing. Pages 92 to 94 from the transcript clearly show that my claim documents relating to Telstra’s incorrect charging were accepted into the arbitration procedure at the oral hearing, having been previously submitted in my interim claim. Pages 91 to 93 cover my explanation of the significance of the material I was submitting and, on page 94, the arbitrator is reported as stating “I don’t think we need any further examples.”

Taking all this into account, with the TIO clearly having mountains of evidence of incorrect charging in his possession at least from the day of the oral hearing, how can he state that the 008 incorrect charging matter was only ‘current at a late stage (April 1995) of the arbitration process.’?

The letter on the next page, from the TIO’s office, shows that, in relation to the incorrect charging on my 1800 line, the TIO has finally (2½ years late) asked Telstra to advise whether they “... agree that this matter was not addressed ...” in my arbitration.

At the time of writing this, in December 1998, I have not yet received a copy of Telstra’s response to this October 1997 letter from the TIO.

According to information provided on good authority, a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent so, even though my evidence clearly shows that this has been happening for some time, it seems that Telstra will avoid facing the issue at all costs.

This just confirms for me that one cover-up followed another, again and again. It also raises questions about why the arbitrator, who was duty-bound to address ALL the issues I raised in my arbitration, did not address this particular issue.

Please read the following letter from the TIO

Other pages taken from the oral transcript have also been sent to the TIO, and to the Minister for Justice as well as the Attorney General. Pages 37 - 38 and 40 - 41 are particularly interesting. From the information in these pages it is clear that, at that time at least, the arbitrator intended to address Telstra’s unethical tapping of my phone lines, particularly in relation to their listening to my private phone calls during the arbitration procedure. On pages 31 and 32 the arbitrator is reported as confirming that, if I included my allegations of telephone bugging in my claim, then Telstra would have a right of reply. It is clear from my reply that I wanted these matters addressed as part of my claim. The transcript actually states:

“Arbitrator to Smith: ... and again I make sure Mr Smith understands what it means — is that effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation? - -

My reply is recorded as being: “No, I will leave it in the claim because - - - -”

To which the arbitrator responds: “You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?”

My reply: “Right, Okay, yes, all right.

The arbitrator: “So you want to leave the allegation in?

My reply: “I will leave the allegation in.”

If Telstra is allowed to get away with this (not addressing past eavesdropping on businesses) while it is Government owned, then what does the future hold for Australia once it is completely privatised, with no Government control at all? Security for Australian businesses is at risk.

In my own situation, legal documents were ‘lost’ between my fax and their intended destination and my private and business arrangements were known by Telstra a long way in advance of the actual event, even while I was in litigation with them. These issues, although raised again and again with the appropriate people, have still not been explained. How many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied off and passed to someone other than the intended recipient, thereby illegally giving information to someone who could well use it to the detriment of the other party?

An article on electronic security in the Melbourne Age newspaper of 10 October 1998 reported that it is currently possible for anyone with access to the network to monitor faxes as they are sent and to keep copies, without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra has the ability to access all calls, though this is supposed to be under strict controls. The Age article went on to ask questions in relation to this apparent easy access to our personal and private information: What could someone use this information for? What if it is misinterpreted? Where might this information end up?

How can the Government privatise an organisation which has run vicious and vindictive campaigns against a group of their own customers simply because those customers took up their right to challenge the service they were being provided with? Before the Bill to sell off the rest of Telstra is passed, this question needs further investigation by the Senate as a matter of priority.

If, when I first raised the issue of my faulty phone services, everyone involved had abided by the rules of natural justice, I would have reluctantly accepted the arbitrator’s award but, because I discovered that the arbitrator himself had breached not only the rules of natural justice, but also the rules of the arbitration procedure itself, I couldn’t just walk away. If I had not seen the documents inadvertently given to me by the arbitrator’s secretary, and understood what these documents proved in relation to the unjust handling of my case, I would probably have reluctantly accepted the award the arbitrator handed down. If Telstra officials had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award — if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award.

The lost faxes in particular raise a number of questions, not the least being — since many of the missing faxes were actually my claim material, and they therefore never reached the arbitrator, how could he arrive at a fair decision without the information contained in those important claim documents?

Many questions remain unanswered for the members of COT.

Why didn’t the TIO check the credentials of the appointed arbitrator to determine that he had the qualifications necessary to run such a complex arbitration, i.e. that he was a graded arbitrator, acknowledged by the Institute of Arbitrators as the person best suited to run such a complex case?
Why didn’t the president of the Institute of Arbitrators alert the TIO to the elected arbitrator’s lack of appropriate qualifications?
Why didn’t the TIO’s legal counsel, who were supposed to advise the TIO on legal matters, advise the TIO that the appointed arbitrator was not sufficiently qualified?
Why did the Institute of Arbitrators, in their letter of 19/1/96, deny that the Institute had any connection with the arbitration?

As it happened, neither the rules of natural justice nor the rules of the arbitration procedure were abided by and, after the arbitration had been ‘completed’ I was inadvertently allowed to see sensitive documents which were apparently hidden from me during the arbitration. If the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence then his integrity would not need to be questioned because it would be clear that he wasn’t being influenced by Telstra. Again, this didn’t happen and so another question is raised:

Was the arbitrator unduly and illegally influenced and therefore no longer an independent adjudicator in my arbitration?

All Australian citizens have a duty of care to expose unlawful conduct if that conduct could be detrimental to the welfare of other Australians. I may have once been a ‘Pommy’ but now I consider myself a ‘true blue Aussie’ and I have spent many years trying to expose the fiasco I found myself caught up in because I believe the law should be observed at all costs. Without a democratic society we would no longer have the freedom we currently take for granted; a freedom so many young Australians have gone to war to preserve. The law is in place as a protection for all Australians, not just those politicians and corporate lawyers who choose to manipulate the system for their own benefit, often to the detriment of other Australians, as this story has demonstrated.

On page 28 of his award, under the heading ‘Faults Caused By Claimant’, the arbitrator appears to have based at least part of his award on a belief that Telstra’s defence documents were based on fact. He says:

“(c) Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d) In this regard I have noted for example, the Statutory Declaration by (name no. 1 deleted)*, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted that statement by (name no. 2 deleted)*, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.”

* These names have been deleted by the author to protect individual Telstra employees. The author and other COT claimants believe that a number of Telstra employees were pressured by the Telstra Corporation into giving false statements in support of Telstra’s defence.

The following statements, taken from Telstra’s own archival material, completely contradict the Statutory Declaration made by the first technical officer mentioned in point (d) above.

1. From an early fault report dated 5/3/93:

“Rang Cape Bridgewater but Mr Smith was out, his assistant stated she had received several calls where on lift off all she heard was dial tone, this is after we shifted 267 267 and 267 230 into system 3 in the RCM. I believe this may be tied up with the Portland AXE Network problem.”

2. FOI document K00960, dated 31/1/94, in relation to my fax line 055 267 230, further states:

“Fax tests to Cape Bridgewater needed as Telstra’s Steve Black had problems faxing Smith Telstra information.”

3. And again, FOI document R37914, dated 19/3/94, also in relation to my fax line, states:

“Found fault to be in RCM at the Cape Bridgewater. Common equipment card due to data corruption.”

Appendix 5, at the end of this book, shows that both the engineer the memo was addressed to, and the National Facsimile Support Centre, had experienced fax problems themselves, when attempting to send faxes to my business. Further FOI documents (K03752 & 7), currently being held in a safe place, show the actual pages and half-pages received by the writer of this memo from the addressee on 28/10/93.

Evidence provided earlier in this book clearly indicates that the faults experienced by these two Telstra people continued to plague my business right through my arbitration (1994/5) and up to at least July/August 1998. As I have explained earlier, during 1994 I alerted both the Minister for Communications and Austel that I was having problems sending faxes during my arbitration. It still seems however, from statements in his ‘award’, that the arbitrator accepted that the Telstra technical officer no. 1 (in point (d) above) had presented the arbitration with a true and factual Statutory Declaration and that my fax faults were therefore ‘attributable to operator error’. Obviously the technical officer has committed an unlawful act of perjury in a legal arbitration process

I wonder if the TIO has still not investigated my fax problems because he believed this perjured information, even though the problems with my fax line were still being experienced long after my arbitration was completed? It seems clear to me that he too believed there were no problems with my fax, simply because the technical officer’s Statutory Declaration suggested that I was the problem, not Telstra.

It is interesting to remember here that the TIO Board is made up of representatives from a number of Telecommunications carriers, including Telstra, Optus, Vodaphone, Primus and AAPT (among others). Since the TIO’s office acted as administrator to my arbitration and should therefore have been aware of the unlawful way in which this procedure was conducted, they should have convened their own investigations into the serious matters raised by any false statements or Statutory Declarations which were provided to my arbitrator. All this information was supplied to the TIO Board and their lawyers in August/September 1999. So now we wait to see what might or might not happen next.

It seems to me that some of the issues around the COT arbitrations have also been deliberately covered up by the Australian Government so they would not have to be correctly investigated before the partial sale of Telstra. My evidence proved conclusively that Telstra continually incorrectly charged me on all three of my service lines over a prolonged period. This is against the Australian Trade Practices Act. If this incorrect charging was occurring on my phone lines, how many other lines had the same problem? Surely then the Australian Government should have notified the share-buying Australian public that it appeared that at least some of Telstra’s profits had come from incorrect charging of their customers?

I believe that the Minister for Communications had a duty of care to:

launch his own investigation into the incorrect charging issue because he was aware that neither the arbitrator nor Telstra had investigated the issue properly, and
issue a statement, in the share prospectus, explaining that some of the revenue reported in that prospectus had been accumulated from incorrect charging practices.

This story, and the documents included in this book, certainly seem to indicate that my arbitrator was not totally impartial. By not addressing the incorrect charging, the short duration calls (which probably indicate call diversion) or the phone bugging, the arbitrator favoured Telstra to my detriment.

If all this happened to me, and it certainly did, who else could it happen to? Could it happen to you too? And, if Telstra can do this, how many other large, powerful corporations are wielding the same sort of power over small business and individuals alike?

It should be remembered that COT members are not only fighting for justice in their own individual cases, they are also fighting for the rights of the Australian public — we are all being ‘ripped off’ by Telstra as long as they are allowed to continue to send out incorrect telephone accounts.

Questions must be asked about the number of alarming connections which seem to exist between Telstra’s lawyers and some high profile politicians. It is also interesting to note that I have alerted the President of the Liberal Party, who is also the Chairperson of the Counsel of the TIO’s office, to this alarming situation, but had no response. Surely these people must be aware by now of the conspiracy and cover-up that has taken place here? Certainly most of them have been given plenty of information; information which should prompt them to dig deeper.

This book has not only been written to alert the public to the treatment meted out to the members of COT, it has also been written to raise the issue of the cover-up carried out by legal vultures and large corporations and, hopefully, to stop such a situation ever arising in Australia again.

When I look back over the years since my arbitration ‘award’ was handed down I recall many moments when I contemplated giving up the fight for justice but how could I when the ‘award’ had left out so much? How could I when the arbitrator stated in the ‘award’ that tourism numbers in my region had dropped over the period of my claim, even though the actual statistics available show an increase? How could I when this down-grading of tourism numbers effected the final ‘award’ which was less than ten cents in the dollar against the amount my accountant calculated I had lost? How could I when the chairman of Austel had guaranteed that consequential losses would be included in any awards made, and this did not happen? How could I after all the financial expenditure involved in preparing my case for arbitration and all the business I had lost, firstly because of the faulty phone system and then because of all the time I had to devote to the case? How could I when I had been forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister? And how could I when I recalled all the issues which had not been correctly addressed, issues which impact on all Telstra’s customers, not just on me?

On the twenty-sixth of February, 1999, I sent three faxes to another COT member, Graham Schorer: the first and third of these faxes arrived at Graham’s office as intended but the second has never arrived. Graham’s fax journal, on the following page, covers the time span during which I sent these faxes from my fax machine and shows the two faxes which were received, marked with an arrow.

My Telstra account for my fax line, below, also covers the time span during which I sent these faxes.

Graham’s fax line number, 03 9287 7001, appears quite clearly on my phone bill. Obviously, according to Telstra, I sent these faxes to the right number and so I was duly charged for the long-distance transmission of them. Comparison of my fax account to Graham’s fax journal confirms that Graham received the fax I sent at approximately 10:53 and the fax that I sent at approximately 1:35 (this appears on Graham’s journal as 13:35) but the document sent from my fax at 11:20 did not arrive at Graham’s fax.

If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we would probably never have discovered that it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on many more occasions.

Back on the twenty-third of May, 1994, I sent seven faxes to my arbitrator. According to a signed document later supplied under FOI by a Telstra senior executive, Telstra acknowledges that these seven faxes did not reach the arbitrator’s office because, according to the arbitrator’s secretary, their fax line was engaged at the times I sent my faxes. After receiving this signed document I asked for Telstra’s technical CCAS data print-out for this particular day and, lo and behold, these seven faxes appear as having arrived at the arbitrator’s office. And, you guessed it, my Telstra account shows that I was charged for these faxes as if they arrived at their intended destination, just as I was charged for the fax I attempted to send to Graham Schorer, four and a half years later on the twenty-sixth of February, 1999.

On page 199 I have related the story of forty-three faxes which ‘went missing’ over the months during which I was lodging my claim with the arbitrator. The seven missing faxes mentioned above are included in this total of forty-three. When I examined Telstra’s defence unit’s list of documents which they received from the arbitrator, it was clear that they had not received any of these forty-three faxed claim documents and yet Telstra has charged me for all of them, some lasting for up to eight minutes (long-distance). The length of transmission time indicates that many pages were being sent.

Two important questions must be asked, in relation to these episodes of vanishing faxes:

1.Where are these forty-three documents?

2.Are they in the same place as the recent fax which didn’t reach Graham Schorer?

If you are still not convinced that something strange is afoot here, either a serious fault in Telstra’s network or some under-handed skulduggery, then I have yet another story to add to this list. Back in March of 1996 my secretarial agency in Melbourne phoned to discuss a document that had been faxed to me earlier in the day. My fax journal for this period shows quite clearly that the fax did not arrive at my office and yet the Telstra account for the agency shows that it did arrive. They were charged for a long-distance transmission lasting four minutes and twenty-five seconds.

We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes, never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

As you are aware, having read this far, neither Telstra nor the arbitrator addressed the incorrect charging on my 1800 line and my fax line, nor did they address the problems associated with my gold phone and it’s later disconnection. Now we see that at least some of these problems continue right up to the present day and yet they have still not been addressed by Telstra or the elusive Telecommunications Industry Ombudsman.

Over the years I have attempted to raise these issues with the Australian Government in a variety of different ways. There are a number of politicians and senators who have the power to call for an investigation into the matters I have raised: I have written to them all, including:

The Hon. John Howard, Prime Minister

The Hon. Peter Costello, Federal Treasurer

The Hon. Daryl Williams, Attorney General

Senator Richard Alston, Minister for Communications

Senator Amanda Vanstone, Minister for Justice

Senator Ian Campbell, Parliamentary Secretary to the Minister for Communications

Senator Geoff Prosser, Minister for Small Business

Mr David Hawker MP, Federal Member for Wannon

Mr John Pinnock, Telecommunications Industry Ombudsman

Mr Wally Rothwell, Deputy Telecommunications Industry Ombudsman

Professor Alan Fels, Australian Competition and Consumer Commission.

Despite numerous pleas to each of these people, none of them have succeeded in getting Telstra to account for their incorrect charging or for faxes that don’t arrive at their destination. In August of 1998 I forwarded on to the Telecommunications Industry Ombudsman’s office, copies of letters from four different professional organisations, each detailing their experiences of faults related to my fax line over the years following the ‘completion’ of my arbitration. Some of these letters refer to incidents as far back as 1994 or as recent as August 1998 and each organisation states that, although they send and receive many faxes, mine is the only one to give them so much trouble.

Early in 1998 Telstra sent two officers to meet with me. My accountant/business adviser was present at this meeting to take the minutes and observe the process. These two executives made it quite clear that they were then negotiating with the TIO’s office regarding a proposed assessment of the incorrect charging issues I had raised. During this meeting I showed the Telstra people a fax that had arrived on my machine from the Crown Casino in Melbourne. This fax was obviously not intended for me and it was one of many I was to receive over the following months, all from within the Crown Casino complex. Finally I complained to the TIO in July 1998 and, although the TIO’s office never responded to my complaint, these faxes from the casino stopped coming. I have never been able to understand how these faxes, originating from the casino, reached my fax machine. Not one of them was addressed to a fax number remotely like mine; they were not even in a similar range. In fact, most of the numbers the faxes were intended for were four hundred and fifty kilometres away.

After the meeting with the two Telstra officers I waited for some sort of resolution of the faults I had raised but nothing happened until October 1998. At this stage of the proceedings I had been paying only part of my fax account in an effort to highlight the problems which had not been addressed. Even though the account for this fax line was still in dispute, Telstra disconnected the line. I continued to pay off the account although this meant I was paying off the rental for a service that no longer exists. The final payment was made on 20 March, 1999, six months after the line was disconnected. This means that, since October 1998, I have been forced to move most of my office duties to my residence in order to connect my fax machine to a working phone line. My faxes are now all sent from my residence and although some faults continue to occur, there are not nearly as many as I had suffered prior to July 1998. On the twenty-eighth of January, 1999, I sent a fax to a business associate some distance away. My Telstra fax account shows charges for two fax calls to his number on this date, one at 08:23 p.m, lasting for forty seconds, and a second call at 08:24 p.m, lasting for three minutes and thirty-one seconds. According to my fax journal, the first call was not answered — so why was I charged for this call? Remember, these are all long-distance, timed calls, not a single twenty-five cent local call charge. And then, according to my associate, the second fax never arrived — so where is it?

If you are still thinking that all these examples of missing faxes could be simply glitches in the system, and of little importance, there are even more astounding and as yet unexplained events. On the nineteenth of March, 1999, my secretarial agency in Melbourne sent a six page fax to my office. My fax machine doesn’t cut off each page, so a multi-paged fax comes off the machine as one long strip of paper. As I watched this fax roll off the machine, it began to ring as if a new call was coming in, even though the line was fully engaged at the time. The fax from the secretarial agency stopped and a two-page fax from my solicitor, also in Melbourne, followed on. While I stood gaping in surprise the phone rang again. The fax from my solicitor ended and the final three pages from the secretarial agency rolled out of the machine — all in one continuous strip: three pages from one address, two pages from a second, totally unrelated address, another three pages from the first address.

And so we arrive at the question on the cover of the book: are your faxes also being lost or intercepted? Who knows? What we do know is that the technology exists to divert calls from one phone (or fax) to another and what we must now ask is — how is that technology being used?

On page 168 I discuss short-duration calls (lasting only a few seconds) which I had complained about for many years. As reported there, Telstra wrote to Austel back on the eleventh of November 1994, stating that they would address these short-duration calls as part of their defence of my claims. Of course this didn’t happen and the short-duration call issue remains unresolved. Another can of worms is opened in regard to short-duration calls by a Telstra document (FOI number A03610) which states that Telstra believed that some of these calls were being diverted. Let me assure you now, I certainly did not have a call diverter on any of my lines back in 1994, not even to divert calls to Telstra’s message bank — I have my own answering machine. So, if these calls were being diverted, where were they being diverted to? Who arranged for them to be diverted? And why were they being diverted? Again, I don’t have the answers.

What I do know is that I am not the only Telstra customer suffering from this ‘phantom diverter’ problem. The members of COT have provided the Victoria Police and Telstra with the name of another Telstra customer who contacted our group some time ago. It has been proved, and Telstra has acknowledged, that some of this customer’s business calls were being diverted to her competitor. Again the question must be asked: how many other customers suffer from unrecognised interference with their phone calls and faxes? Why haven’t the Telecommunications Industry Ombudsman or the Federal Police investigated any of these issues? How long is the Minister for Communications going to continue to ignore these issues? Telstra’s enormous profits continue to grow and Telstra shareholders continue to reap the benefit which is a good thing — unless, of course, these profits come from faulty billing procedures and ‘ripped off’ customers.

Telstra have recently sent another disconnection notice for my office fax line, the one that was disconnected some time ago. How they plan to disconnect an already disconnected line is quite a puzzle but even more of a puzzle — the latest account for this disconnected line includes a charge for $60 rental to take the account up to June 1999!

COT members only recently discovered the TIO and Telstra met in private, without a representative of the COT group, during the planning stages of our arbitration. What they actually discussed at this secret meeting may never be uncovered, however this same lawyer later informed me that the rules of my arbitration had been specially drawn up so that the process would be non-legalistic. Legal experts have since stated that the COT arbitrations, far from being non-legalistic, were actually a legal minefield for anyone without a high level of legal training.

To continue the conflict of interest theme, I have also recently learned that the arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. Again no COT representatives were notified of this meeting either. In lay terms, this is similar to the presiding judge meeting in his chambers with the defendant in a court case, and the defendant’s lawyers, without the opposite party or accuser.

This secret meeting raises many questions:

Will we ever know what was discussed at this meeting?
Did my arbitrator tell Telstra that he would not address the short duration call issue?
Did my arbitrator tell Telstra that he would not address the incorrect charging on my 008 number?
Did the arbitrator agree with Telstra that he would only allow the claimants a limited time to prepare their claims? (In my case I was only allowed six weeks although Telstra had eight months to respond instead of the agreed one month)
Did the arbitrator agree not to provide discovery documents sought by the claimants? (In my case, even though the arbitrator did not supply documents I asked for, I had to spend my own money to prepare responses to Telstra’s requests for further particulars -- Telstra, of course, could dip in to the public purse to pay their bills.)

CHAPTER 35

As you have read through this long and complicated story I have sometimes asked that you re-visit earlier chapters in order to refresh your memory on particular details; now I ask you, once more, to turn back to pages 193 and 194 where I relate the details of the John Tuczynski story. John, you will recall, ran a business called Liberty USA Pty Ltd. He was another small business person caught up in the ‘Big Brother Syndrome’ of Telstra’s dealings.

John could not believe the result of his eminently winnable case against Telstra. To add to his distress, John and his wife are convinced that losing this unlosable battle may well have contributed to his father-in-law’s death. John decided to look for another way to secure justice ... and “CyberJustice, The People’s Court” was born. This Internet site details the way a number of Australian citizens have been treated by our justice system. Evidence from more who have suffered continues to roll in as I write. I have also drafted a movie script of the COT saga.

Although my battle has raised many different justice issues, I believe the invasion of my privacy is the probably the most devastating. An Australian journalist with a number of manuscripts to his credit has also commented on the privacy issues raised in my story. He says they are the most damning he has read and he agrees that the Telstra officers who have been prepared to infringe on the civil liberties of Australian citizens must be made accountable for their actions and for the heartache and damage those actions have caused.

One small result of the pressure I have put on Telstra to treat their customers in a more civilised manner, was an invitation, on 22 March 1995, during my arbitration, to visit Parliament House in Canberra, together with three other members of COT -- Ann Garms, Graham Schorer and one other (who wishes to remain anonymous -- I will call him Mr X). The Government of the day at the time appeared to be seriously concerned about the privacy issues which had been raised by COT members, particularly the evidence of illegal voice monitoring and phone bugging by Telstra. We were invited to participate in a Senate debate regarding an amendment to a proposed re-writing of the Telecommunications Laws Act. At this debate I tabled most of the information now included in this book. The four of us also met separately with individual Senators. One of these Senators in particular appeared to be totally disgusted at the information we placed before him.

During the Senate debate itself, our Mr X detailed the problems he had experienced in dealing with Telstra. Mr X lived in the country at the time and worked as a telephone counsellor: he produced proof that these intensely private and confidential telephone discussions had been listened to at his country telephone exchange.

Even after all of this though, the members of COT are concerned that nothing has changed and so, on 28 August 1999, I wrote again to my local Member of Parliament (MP), detailing stories that I strongly believe should be told before the full sale of Telstra. A number of these stories relate, unbelievably, to Telstra’s use of the Mental Health Act in their dealings with customers who complain about Telstra’ services.

During our battles with Telstra, we learned that various Telstra officials were referring to some COT members as being of ‘unsound mind’. Recently a number of other instances of similar situations have been brought to my attention. One of the documents which I forwarded to my MP on 28/8/99 was a copy of a letter dated 9/8/99, addressed to a current Senator, from a practising lawyer who had grave concerns regarding two of her clients: a lady from Queensland and a man from country Victoria. The man is the person previously referred to as Mr X. Both these people have claims against Telstra, similar to the COT claims and they have both given permission for their stories to be told (anonymously) in this book and the movie script. The details supplied by their lawyer to the Senator include the fact that both these people have been the subject of warrants issued by the Telstra Corporation under the Mental Health Acts of Queensland and Victoria. In her letter, the lawyer asks the Senator if the present Government has taken steps to see that the relevant States revoke such authority and if not, whether the Government believes it appropriate for the Telstra Corporation to exercise such authority. In my letter to my MP I asked the same questions.

All Australians should now be asking if Telstra still have this same power and will they continue to have this power once Telstra has been privatised or will they have even more power, once they are outside Government control?

Another of the many issues COT members have with Telstra relates to one of the original COT members. This man once owned a successful, telephone dependant pizza parlour. His business had, in fact, become so successful that he decided to expand his advertising into the ‘Dial A Pizza’ area. Just as he launched this advertising campaign, many callers to his business began to complain of problems getting through on the phone. I understand that, at the time, Telstra suggested that his telephone was the cause of some of his phone faults. The telephone under discussion was a model called T200.

In appendix 9 you will find a copy of FOI document D01026, a document discussing possible faults with 450,000 Exicom T200 telephones. As you can see from this document, because the faults with these phones were believed to be caused by high humidity, Telstra deployed the phones to areas where they believed there was minimal humidity. COT members are now wondering if our pizza parlour owner was a victim of one of these re-deployed T200 telephones? His shop may have been in a designated ‘low-humidity’ area geographically, but what about the humidity levels INSIDE the shop? I imagine the heat and humidity generated by pizza ovens could well have created the very conditions known to cause problems with these phones.

Are you surprised to find that, along with the two clients whose lawyer is now querying the Senate, our pizza parlour owner was also the victim of Telstra’s rampant imagination with suggestions that he may be insane? His experience of Telstra’s ‘mental health’ syndrome occurred one day while he was driving, with his children in the car. He was pulled over by the police for not wearing his seat belt and provided his driver’s licence as requested. Almost immediately he was ordered out of the car. He was saved from arrest only because he had been pre-warned of the possibility of Telstra issuing a mental health order against him and so he was carrying a certificate attesting to his sanity.

As it happens, after many years of struggling in the legal arena, with hundreds of thousands of dollars of debt accruing, finally the Australian Senate intervened in the pizza parlour versus Telstra case. The result? The once proud pizza parlour owner, now quite ill as a result of all the worry and stress, has finally been awarded a substantial out-of-court settlement, to be paid by the Telstra Corporation, under the watchful eye of the Senate. Could this possibly suggest that he had never had any mental problems but was simply demoralised and distracted as a result of Telstra’s attempts to discredit him?

During my own arbitration, as I have mentioned on page 162, Telstra’s defence lawyers commissioned a high profile clinical forensic psychologist to travel from Melbourne to assess my mental state. Before he saw me, Telstra’s defence unit provided this man with a number of reports and other documents to help him evaluate information regarding my allegations that Telstra had not provided me with a phone service up to network standard. I have since been able to gain access to this information myself and it is quite clear that, before these reports were passed to the psychologist, at least some of the information had already been acknowledged, by a member of Telstra’s defence team, to be flawed and impracticable. Even so, the material was still provided to the psychologist and he was not alerted to the flaws in the documents.

The Australian Senate must now ask Telstra’s Board and Telstra’s senior executives:

Did Telstra also provide flawed or faulty information to the Mental Health authorities in Queensland and Victoria when they applied for warrants against the two latest ‘victims’?
Have there been any other cases where Telstra has exercised authority under the Mental Health Act anywhere in Australia?
Have any Australian citizens actually been committed in to care as a result of Telstra issuing such warrants?
Are any Australian citizens still institutionalised as a result of the issuing of such warrants by Telstra?

Surely this outrageous behaviour by an Australian corporation must have us all asking questions about our own safety. Could you be the next person to be institutionalised by Telstra? How much longer will Telstra be allowed to get away with this behaviour? How many more defenceless businesses will go under before Telstra is finally brought to account for their activities?

CHAPTER 36

An earlier draft of this book, before the addition of the final chapters, has been sent to all seventy-six Australian Senators in an attempt to highlight Telstra’s unlawful conduct. In response, Senator Kim Carr wrote (refer prologue) to express his concern about the information contained in this manuscript, and a number of other Senators have expressed concern directly to the media, particularly regarding the privatisation of Telstra. Perhaps it was ‘Ring For Justice’ that alerted them to some of the problems that still exist with the Telstra corporation.

Prior to publication of this book, a copy of this final chapter (Chapter 36) was sent, in full, to the Australian Prime Minister, in an attempt to alert him to my concerns. It seems however that the Prime Minister’s office in not concerned about proof that Telstra customers cannot trust their telephone lines, even when (or perhaps particularly when) they are involved in legal proceedings.

Perhaps the worst infringement on our rights as Australian citizens is occurring, I believe, as a result of Telstra officers who are illegally accessing the intricate telecommunications security network system which is located on the thirty-seventh floor of Telstra House in Exhibition Street, Melbourne. This area is so vital to Australia’s security that I have been loathe to raise this issue anywhere else in this book. The fact that I have resorted to detailing these security infringements here indicates that all other attempts to have my concerns addressed by the current Government, including the Prime Minister’s Department, have failed. My hope is that this exposure of the problems surrounding Floor 37 will eventually bring these illegal activities to a halt.

After I forwarded copies of ‘Ring For Justice’ to all the Senators, at a personal cost of more than thirteen hundred dollars, I was contacted by a number of ex-Telstra employees who somehow managed to acquire a copy of the book. Some of these people have complained primarily about termination pay entitlements being incorrect; others have been so incensed at what they have read that they have forwarded material, too sensitive to include in this book, which supports all that I have detailed here. One person related the following story of Floor 37, in front of a witness.

We were interested to hear that many Telstra employees refer to Telstra House as ‘Bullshit House’ but, aside from this amusing comment, the story of Floor 37 should give rise to grave concerns.

According to this informant, there is tight security in place on Floor 37 because, secreted below a false floor, there is an intricate network of communication equipment which allows direct access to every telephone line in the country, including lines used by Telstra’s opposition -- Optus, Vodaphone, Primus, AAPT etc. Apparently this floor also has a data-base room which monitors customer information. Naturally the security level is therefore required to be extremely high. In fact, if the system is working correctly, only very high level Telstra executives have access to the area. It seems, however, that the system is not working correctly.

The existence of floor 37 in Telstra House can easily be checked: what actually takes place on that floor is not quite so easily uncovered. The existence of all this equipment in one central location however, could well explain some of the problems suffered by various members of COT throughout Australia. Back on page 104 of this book you will find a copy of a letter to Mr Steve Black of Telecom / Telstra, from John MacMahon, General Manager, Consumer Affairs, Austel. In this letter Mr MacMahon acknowledges receipt of nine audio tapes from Telecom / Telstra and notes that these tapes have been passed on to the Australian Federal Police. The letter makes it quite clear that these nine tapes related to the ‘taping of the telephone services of COT Cases.’ No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian States in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a resolution process which had been put in place for the COT members. What we don’t know is the ‘how’ of the process, or the ‘where’. Could this taping have been carried out by Telstra officers who gained illegal access to Floor 37?

This book has already shown the haphazard way in which Telstra’s officers conduct the affairs of the company and it is therefore quite frightening to ponder on who will have control of Floor 37 and all the intricate network equipment it houses if Telstra is no longer under Government control. If Telstra executives have been allowed to get away with the behaviour we have so far uncovered, while the company was Government owned, how much worse will the situation become if there is no Government control and no accountability to the Australian public?

Now that the Australian Government is pushing to fully privatise Telstra I believe the Prime Minister’s Office must answer the following questions:

1.Do all seventy-six Senators know how Floor 37 will operate once Telstra is fully privatised?

2.Who will be appointed to oversee the daily duties associated with Floor 37?

3.Have the Federal Police, or any other Government Agencies, been notified that Telstra officers may have used this intricate security network to Telstra’s own commercial advantage (ie by live voice monitoring of phone lines) during an Australian arbitration process?

4.If any Government agencies are aware of this illegal activity, are they also aware that any phone bugging or live voice monitoring that may have occurred must have been carried out without the knowledge or authorisation of the people whose lines were being interfered with?

5.If any Government agencies are aware of this illegal activity, have they carried out any investigation in relation to this illegal activity?

6.If investigations have been carried out, what was the outcome?

AUSTRALIAN SENATE RECORDS - 26 SEPTEMBER 1997

On page 140 of this book I have referred to a report prepared by Bell Canada International (BCI), on behalf of Telstra. As previously noted at the end of page 140, a number of pages from Hansard Parliamentary Records were forwarded to me just as I was completing this book. Two of these pages follow here. In relation to these pages from Hansard it is also interesting to note that, at one point, Telstra were considering ‘cleansing’ this BCI report (refer page 191, FOI document A05254) and, as reported on page 140, both BCI and Telstra have admitted that the BCI report was ‘impracticable’.

On page 108 of the Hansard document (following) Mr Armstrong refers to ‘one of the COT members’ alleging that the BCI report was fabricated. I believe Mr Armstrong was referring to me at that point and he knew, at the time, that I was right: NONE of the tests included in the addendum to the BCI report could possibly have taken place to 055 267 211, the test PTARS phone, because of other testing which was also being carried out, by Telstra, on the same day and at the same time. The power of Telstra continues to amaze me. Not only did they lie to the Senate, but they have, so far, gotten away with it.

At the top of Hansard page 109 Mr Armstrong refers to ‘an apparent clash of dates ... with two sets of testing.’ He goes on to say that, as he recalls, BCI then ‘provided a letter saying that there was an error in the report.’ As it happens I have a copy of this BCI letter; I believe it is a phoney because BCI only refers to a single test being flawed but, as I have explained on page 114, none of the BCI tests could have taken place. These two Hansard pages are reproduced on the following pages.

It is interesting to note, in his first comment on Hansard’s page 108, that Senator Schacht was not only concerned about the alleged inaccuracies included in the BCI tests, but also the ‘hundreds of millions of dollars between various service providers and other telecommunications providers claiming false overbilling’ . (my emphasis)

It is also interesting to remember that two of the issues I raised during my arbitration were:

1.Telstra’s incorrect charging and

2.Evidence of serious flaws in the BCI test at Cape Bridgewater.

No-one has yet looked at the link between these two issues.

Why have the Government and the TIO’s office allowed the incorrect charging to continue? In my own case this situation continued for at least twenty-two months after the completion of my arbitration. In the end, the only way I could control the incorrect charging on my 800/1800 free call line was to discontinue the service: the only alternative was to continue to suffer the incorrect billing. It would seem that the Government has very little concern for the small business sector.

At the end of Hansard’s page 109, after establishing that Mr Benjamin was both the Telstra person ‘designated to handle the CoT cases’ and also a ‘member of the TIO council’, Senator Schacht asked Mr Benjamin if he had declared his interest in the COT cases to the TIO. On the next Hansard page (not included here), Mr Benjamin replied ‘There was no formal declaration...’.

As part of my continued search for justice I finally approached the Victoria Police and, in April 1999, I was notified that the matter had been taken up by the Major Fraud Group (see letter below). Over the months since the start of this investigation, as the Fraud Group have delved into the intricacies of my case against Telstra, I have provided them with numerous documents, including all the documents in this book. When I realised the significance of the Hansard pages I received late in August of 1999 I immediately forwarded them to the Major Fraud Group (see following letter dated 1/9/99).

As I explained in this letter to the Fraud Group, when Mr Armstrong’s comments (as reported in Hansard) are coupled with information about the flaws in the BCI report it is clear that Telstra knew that their defence of my arbitration claims were based on flawed information. You and I can see this and so can the Major Fraud Group.

Now we just have to hope that the Victoria Police Major Fraud Group are allowed to complete their investigations without interference from any Government body, Commonwealth or State. I believe these investigations will clearly support all my allegations. The results of this investigation will be announced on our CyberJustice web page as soon as they come to hand. Meanwhile, I have issued a challenge to Telstra .....

MY CHALLENGE TO TELSTRA

If Telstra is determined to stand by the comments made to the Senate on 26 September 1997 then I suggest they replicate the testing now, under identical circumstances and conditions to the tests allegedly carried out by BCI. This should include arranging for NEAT testing to occur at the same time.

If Telstra will not agree to take up this challenge, why will they not agree? Could it be that they know full well that the testing recorded by BCI in their report addendum could not have been carried out to the same PTARS 055 267 211, at the same time as the NEAT testing conducted by Telstra? Could it be that they are aware that an admission of this would mean that they would then have to admit that the BCI test results were flawed? Could it be that they are aware that an admission that these tests could not have been carried out as reported in the BCI report would mean that they would have to admit that they have misled the Senate?

Finally, as a result of my experiences laid out in this book, I believe Telstra must remain accountable to the Australian Parliament as do a number of Senators and other politicians from both sides of the Australian Government.

In ‘The Australian’ newspaper of 9/9/99, Michelle Gilchrist reported that the Federal Labor MP and Committee Vice-Chairman, David Cox, has said that ‘Telstra should be accountable to the Senate process because it was responsible for billions of dollars of publicly owned assets.’

Greg Rule reported, also on 9/9/99, that ‘The Australian Democrats Communications Spokeswoman, Senator Allison, backed Labor’s stance, saying Telstra must continue to be accountable to Parliament while it was still in majority public ownership.’

How can a corporation like Telstra be allowed to be free to do whatever they want without having to answer to anyone other than their shareholders? Would those shareholders actually care if some small-business person has lost their business somewhere in rural Australia as a result of Telstra not supplying a reliable phone service? If Telstra’s decisions ruin a few small-businesses but the value of the shareholder’s shares goes up, my bet is that the shareholders would turn a blind eye.

‘Ring For Justice’ has proved, beyond reasonable doubt, that, in my case at least, Telstra spent an enormous amount of money, in a valiant attempt to hide the inadequacies of their phone service from the public. If Telstra’s financial director has his way Telstra would only be accountable under corporate laws.

The TIO’s office is supposed to offer an unbiased investigation and resolution process for all telephone companies and their customers. According to my experience that is certainly not the case, although the TIO has told a number of Senators that he believes that my arbitration was ‘fairly run’. The TIO has also stated that my arbitration is now completed but I have to ask, how can it be complete if the phone and fax faults that drove me to arbitration in the first place continued to plague my business throughout the arbitration process itself and for at least another two years after the arbitrator had handed down his award?

Of course we cannot allow Telstra to only be accountable under corporate law!

Senator Alston wrote to my Member of Parliament on 27/2/98 and again on 29/5/98 stating that Telstra had undertaken to examine all the documentation with a view to resolving my concerns. Tom Dale, from the Minister’s office, wrote to the author on 13/2/98 stating that ‘Telstra has indicated that it is currently investigating your claim that you were overcharged on your 1800 service.’ A later letter dated 9/6/98, from the Deputy TIO stated:

‘The purpose of my intended meeting with Mr Hughes (arbitrator) is to clarify whether he did consider the 1800 issue during the arbitration.

The Ombudsman’s advice to me though is that he is only prepared to discuss or investigate the 1800 matter of overcharging.’

Both these letters were written some three years after my arbitration had been deemed to be complete. To date I have not been advised of the results (if any) of these investigations. If Telstra and the TIO had correctly investigated these short duration and incorrectly charged calls during my arbitration, they would have discovered that many of these incoming calls were being illegally diverted to an unknown location. I can only assume that I have not heard from either the TIO or Telstra regarding their findings because they would have then had to admit to the unlawful diversion of these calls. Since they still haven’t advised me of the result of their investigations, I have to assume that they DID uncover this illegal call diversion by unknown people, and they have decided to hide this fact.

Since these faults continued after the alleged finalisation of my arbitration, I have literally been forced to pay for some of the incorrectly charged calls under threat of disconnection of my phone service if I didn’t pay my on-going accounts. In fact, two of my phone lines were disconnected because the TIO would not correctly address my valid claims. I believe this is nothing short of blackmail.

Various letters, reproduced throughout this book, show that the organisations and government ministers I have approached in search of help appear to have ignored the truth. Clearly I had no other option left to me but to present the facts in this format, in an attempt to find true justice.

The Google link below shows others with more experience as Investigative journalists deal with the injustices bestowed upon the COT Cases. After reading My story - warts an all and the Google link below, you will be able to judge the validity of my claims more.

Telstra’s Acronyms & Jargon

AOMP: An Ericsson TMOS Network Management System tool for handling Operations & Maintenance functions for one or more AXE exchanges – particularly suited for use as an O&M centre for a number of rural exchanges which are spread over a large geographical area. Please note: while the AOMP has not operated in the Cape Bridgewater location Alan Smith has documented here because documents at hand have discussed this tool.

AOTC: Australian and Overseas Telecommunication Limited – former name of Telstra Corporation Limited – comprising the merged Telecom Australia and Overseas Telecommunication Corporation

ARE-11: Ericsson Analogue Crossbar Controlled Exchange. Please note: this type of exchange was operational during a period Graham Schorer had his problems.

ARF: Urban or large crossbar exchange by Ericsson

ARK: Rural or small crossbar exchange (Ericsson ) Please note: In the Casualties of Telecom (COT) report dated 13th April 1994, AUSTEL reported that the Cape Bridgewater exchange up and until the RCM was installed was an ARK, when in fact the system at Cape Bridgewater was an ‘old’ outdated RAX see below. An ARK crossbar exchange was manufactured approximately 20 years after the RAX system. Portland during the early nineties until August 1991 was an ARK which fed calls to the Cape Bridgewater RAX system.

ATUG: Australian Telecommunication User Group was operating well before the Telecommunication Industry Ombudsman (office of complaints) was formed in June 1993. ATUG was a voice for small businesses and as such paled a roll in enhancing services in the communication industry. Graham Schorer was a member of ATUG. Deputy TIO Wally Rothwell, before being appointed as Deputy TIO was Chief Executive Officer of ATUG for ten years.

AUSTEL: Australian Telecommunication Regulatory Authority. Please note: in July/August 1992, the then General Manager of AUSTEL’s Consumer Affairs, Amanda Davis, became involved with helping the COT group establish themselves as being responsible small business people who had legitimate phone complaints. It was through Amanda Davis’ stand in helping beyond the normal role as an officer of a regulator that she was literally forced to terminate her position.

AXE: Stored Programme Controlled (SPC) Digitally Switched exchange developed by LM. Ericsson, large numbers exist in the Australian network; used also for ISDN

AXE 104: LM Ericsson Digital Switch (Rural). Please note: This is the digital exchange that was installed in Portland in August 1991, cutover from the ARK system (see ARK above). In the AUSTEL COT Report p 167 and questions raised by Senator Alston in the Senate Estimates 25th February 1994, relating to the problems being experienced by Alan Smith while connected to the AXE 104. The Senate Hansard referred to here can be located in Ted Benjamin (Appendix 16(a).

BS: Base station.

Busy Hour: The hour of the day when the average traffic of an exchange is highest. In Telstra Australia practice, it is defined at the two busiest consecutive half hours commencing at the hour of half hour. NETWORK – The hour during which the total traffic flows through the network under consideration is highest. Please note: The Bell Canada International (BCI) tests were supposed to be generated through the Busy Hour. In the case of Alan Smith it has now been confirmed that the BCI tests (if they were done at all) were not generated through the Busy Hour.

C & BI: Charging and Billing Integrity. Please note: Alan Smith has seen reference to this in his Telstra related billing files (somewhere) and therefore has included the acronym here.

CABS: Charging AND Billing System (CABS) is an automatic system for billing customers. CABS was replaced by FLEXCAB (when Mr Smith is not sure when) however, FLEXCAB was supposed to have improved the billing capabilities.

Call Trace: A feature that allows the Customer to cause the last call received to be traced.

Can: Customer Access Network. The part of the network between the telephone exchange main distribution frame and the Service Delivery Point at the customer premises. Please note: on page 243 in the AUSTEL COT Report point 11.8: “…AUSTEL had written to Telecom informing it that the claim in the Bell Canada International report to the effect that Telecom’s customers received a grade of service that meets global standards goes to far because the study was an inter-exchange study only and did not extend to the customer access network – AUSTEL had agreed to the study being so limited on the basis that other monitoring it had requested Telecom to undertake on AUSTEL’s behalf should provided AUSTEL with the data on the efficacy of the customer access network – See Verification issues LGE 7.

CANES: Customer Access Network Evaluation System – C&C system – provides a complete fault registration, recording, diagnosis & analysis environment aimed at improving responsiveness to reported fault – uses A1 technology – interfaces with SULTAN. Please note: this is another system for fault finding by way of intercepting telephone conversations.

CCAS: Call Charge Analysis System – monitoring charging of selected services in analogue exchanges. CCAS type systems can not detect the answer signal & hence can not determine if the call was effective or what the chargeable time is on an effective call – the CCAS records are still of considerable use i.e. to allow comparison of CCR & CCAS records on a-party number b-party number, date, call clearance time. Please note: The CCAS data which was not provided to Alan Smith during the SVT testing, now confirms that the SVT tests were not generated as stated in Telstra’s arbitration defence – see Verification issues LGE 7

CCAS ELMI: This is the monitoring equipment that Telstra used under direction from Telstra to test Alan Smith’s service lines during 1992/93. Gordon Stokes, a local Portland technician had this equipment attached to Alan Smith’s 055 267267 service on the 13th October 1992, but denied to senior Telstra executives that this equipment had been in use during the day it detected incoming call losses to Alan’s business – see Chronology for this date.

CENTOC: Centralised Traffic Occupancy – computerised traffic recording & monitoring for analogue exchanges. Please note: this information was never provided under FOI by Telstra to either Graham Schorer or Alan Smith during their respective arbitrations. While neither Graham nor Alan actual asked by name they required CENTOC data, as the information being sought under the respective FOI requests, they did ask for all ‘network monitoring’ information. Both Graham and Alan have been advised Telstra’s guards the CENTOC, which is some times referred to as CENTOCTRAXE with armed guards as this data does not lie and will determine whether there are network problems affecting certain locations.

CHARMS: Charging Maintenance System – provides locations, rates & charging scales for Telstra’s customer charging – does not store unique customer details, but significant information to classify customer groupings attached to any exchange within the Telstra network.

CLI: Calling Line Identification – a customer facility in crossbar and SPC exchanges for billing and surveillance purposes – identifies the number of the calling party’s line.

CPE: Customer Premises Equipment. All telecommunications terminal equipment located on the Customer premises, encompassing from the analogue telephone to the most advance data terminals and Customer switches. Please note: Page 53 of the Coopers & Lybrand report acknowledged that Telstra had a habit of blaming CPE for faults instead of proper investigation.

DNF: Difficult Network Fault, Please note: in the Coopers & Lybrand and AUSTEL COT Report, they jointly refer to the COT Cases as DNF customers.

DOTAC: Department Of Transport and Communications. Please note: the abbreviation for the Communication’s Ministers Office being used by telcos DCITA – Department of Communications Information Technology and the Arts.

ELMI: Portable Telephone Charge Analyser. Brand of CCAS equipment used mainly in country area’s.

EOS: End of selection code – used to monitor switching & congestion loss. Please Note: this equipment allows the person operating the monitoring switching device to listen in on conversations. See Gordon Stokes witness statements for Telstra’s arbitration defence of Alan Smith’s claims.

FLEXICAB: A system similar to CABS (see above) but, with many more processes and capable of producing very meaningful management reports. Please note: neither Graham Schorer or Alan Smith was provided with any FLEXICAB and/or CENTOCTRAXE data information under their FOI requests (during their respective arbitration’s). This update information would have assisted both the TIO appointed technical consultants as well as the claimant's consultants in determining if the SVT testing was authentic or not.

IRS: Inter-network Routing Service.

ISDN: Integrated Services Digital Network (CCITT) – A switched digital transmission network that provides, through a single digital access point, speech, data and other telecommunication sciences. The hierarchy of digital switching & transmission methods.

LEOPARD: Local Engineering Operations Processing and Analysis of Recording data – a plant recording & maintenance system for telephone services; a computerised system to cater for all field technical records associated with provision and maintenance of services. Please note: While Alan Smith has not fully looked into Graham Schores’s technical information regarding Mr Schorer’s registered fault complaints, Alan has been able to determine that even after Mr Smith had supplied fault information to either 1100 or the designated special fault centre at Waverley (Victoria),Telstra did not all ways registered those faults in Leopard.

LOOP: Pair Gain Signalling System

Macrolink: Telstra’s Primary Rate Access ISDN services that provide a high speed service for speech and data.

MCT: Malicious Call Trace: Please Note: During May to August 1993, Telstra connected Alan Smith’s incoming 055 267 267 service as well as his 008/1800 free-call service to MCT. Also during May to September 1993, Telstra connected Alan’s facsimile service line 055 267230 to MCT. The side affect-problem with MCT is that it does not allow any other intended incoming call to connect for a 90 second period – see witness statement of Telstra’s Dave Stockdale.

MDF: Main distribution Frame. Structural hardware, on one part of which terminate the permanent outside lines entering the Customer’s premises and on another part of which terminate the subscriber line multiple cabling, used for associating any outside line with its corresponding internal exchange wiring.

MOSAIC: Trouble Management system – replaced the Leopard system of fault recording.

Multiplexer: The combining of multiple channels onto a single transmission medium; any process through which a circuit normally dedicated to a single user can be shared by multiple users. Please note: The telephone system that service Alan Smith from August 1991 to 2001, operates using a multiplexer system.

MUX: Multiplexer.

NASM: National AXE System Manger.

NCC: Network Control Centre.

Neat System: Network Evaluation and Test System. A test call system consisting of remote transponders, each connected at the network exchange MDF point as a normal customer, and central management and control unit. This system can conduct a schedule of test calls between transponders to measure call set-up, and hold performance, together with transmission, noise, post dialling delay, and other tests. Please note: During the AUSTEL COT Case investigations, AUSTEL implemented through Telstra that all the DNF problem customers had to have Neat Testing performed at their local exchanges. In the case of Alan Smith, it has now been confirmed (see CAV targets) that NEAT testing was performed at the Cape Bridgewater RCM as shown in the AUSTEL report. The NEAT Ericsson equipment used in the Cape Bridgwater tests October/November 1993, allowed for each test to remain open for a minimum of 120 seconds, allowing for transmission testing for noise, post dialling delay faults. This type of Neat transmission testing was used for the SVT tests carried out on Mr Smith’s service during his arbitration (see CAV targets 7 and the Brian Hodge MBE report for more information.

NODE: A point of a network where various links come together and which generally contains a switching element to direct traffic.

NRR: Not Receiving Ring. Please note: the NRR fault was a major problem uncovered by the COT Cases during late 1992 and into 1994. Example: A caller rings a service and does not get connected either receiving a dead-line, or piecing sounds like a facsimile type noise even though no facsimile is connected at the calling end. In the case of Alan Smith, numerous complaints registered to him by customers (when they finally getting through) or by writing to Alan, was the only way he became aware that a customer was lost.

OAS: Operator Assisted Service.

OFMUX: Optical Fibre Multiplexer Equipment.

OMP: Operations Maintenance Processor.

OPAS: Operations Performance and Support. Please note: from what Alan Smith has observed from reading a number of technical documents is, that OPAS is the last resort used by local rural technicians.

Outrage: Is the time that Service to the customer will be unavailable for. Please note: this type of happening to a customer should be kept to a minimum however, Telstra in the case of Graham Schorer and Alan Smith, their customers experiencing (RVA see below) was an outrage from them twofold.

PABX: Private Automatic Branch Exchange. A small switching system located on a customer’s premises which serves speech and data extensions within a business complex and provides access to the public network. Please note: during the COT arbitrations’ Golden Messenger was operating off of a PABX. System.

PSTN: Public Switched Telephone Network. Public telephone network which generally provides switching and signalling for local, long-distance, and international voice and low-speed data.

RAX: An outdated communications system that only operated in low call rate locations, designed in the 50s. Please note: the Cape Bridgewater Holiday Camp was connected to an RCM until August 1991.

RCM: Remote Customer Multiplexer – digital pair gain system. Please note: The Cape Bridgewater Holiday Camp operates off of an RCM which is housed in a hut. This system is not an exchange and is totally unmanned.

REARK: Private company which produces TELCATS reports. Please note: often –quite often, from 1992 through to 1994, REARK was used by Telstra to enable them to provide reports to the Minister of the day, including the regulator AUSTEL

RUBAS: Traffic figure based on the 50 highest half-hour average traffic figures over a 7 day period. Please Note: like the CENROC TRAXE and CABS data, the traffic information obtained from RUBAS in the Warrnambool and Portland locations (South West Victoria) was also not supplied to Alan Smith under FOI during his arbitration.

RVA: Recorded Voice Announcement. A recorded message is played through to a caller (who might have dialled the right number) but is confronted with a recorded message stating that “the number you have called is not connected.” Please note: Telstra has recognised that the RVA fault was a known National Network Software problem that came about when they implemented the 1800 number. The RAX and RCM system installed at Cape Bridgewater, which suffered congestion, gave the same type of (recorded message) to the caller into Cape Bridgewater when the system was congested.

SMART 10: Subscriber Monitoring & Registration Terminal. This system operates similar to the CCAS see above.

SPC 1 Stored Processor Controlled (Exchange) e.g. AXE, ARE

SULTAN: Subscriber Line Test Access Network – provides test information vital for diagnosis of customer fault reports and network performance monitoring – used with LEOPARD and CANES –C&C system. Please note: this is another tool for voice interception.

TIMS: Telephone Information Management System.

TRAFFIC: A term applying to simultaneous calls in progress, not to total calls generated over a period of time.

TRAXE: Traffic Recording for AXE – data acquisition system – uses Data General minicomputers located in each State – apart from traffic analysis. Please note: Alan Smith has already mentioned above, that CENTOC TRAXE data information should have been provided to him under FOI during his arbitration. The Customer Remote Multiplexer RCM at Cape Bridgewater was service via an AXE in Portland.

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Second draft story

The depths to which Telstra stooped in its conduct with the COT claimants seems to suggest just how little confidence Telstra had in its own case. But why was it so fearful of being found liable? What was the worst that could happen if our claims were vindicated? What was it trying to conceal? What convinced the arbitrator to allow Ericsson telecom to buyout (purchase) the principal arbitration technical unit Lane telecommunications Pty Ltd who was investigating the poor perfomance of the Ericsson telephone exchanges (the subject matter under investigation in the arbitration process refer to Chapter 5 - US Department of Justice vs Ericsson of Sweden)?

When I was able to prove to AUSTEL, the government communications regulator, that Telstra had carried out their threats made against me for assisting the Australian Federal Police with their investigations that Telstra was intercepting my phone conversations and then my arbitration-related faxes (See Senate Evidence File No 31), I took those claims to AUSTEL, only to find that AUSTEL had concealed the most relevant document of all documents needed to prove my case, namely, AUSTEL’s Adverse Findings, which demonstrates that Telstra had not been supplying me a telephone service as they should have under their licensing condition.

Why would a government withhold from one of its citizens such a vital document knowing it would win me my case? Who forced the government to provide only Telstra a copy and not the claimants, as Chapter 1 Fraudulent Conduct Falsified Reporting clearly shows.

These actions by AUSTEL was an abuse of process when they allowed me to commence my arbitration proceedings against Telstra, without the necessary documents I needed to support my claim. To have allowed me to spend more than $300.000.00 in arbitration fees trying to prove something that the government had already established against Telstra breached their statutory obligation towards me as a citizen of Australia.

With my business still suffering from ongoing telephone problems for a further six years after the conclusion of my arbitration with Telstra, the Telecommunications Industry Ombudsman (TIO) and AUSTEL all denying my phone problems were still apparent in 2001, I reluctantly sold. Within two weeks of that sale, the new owners were now writing to Telstra, the TIO and AUSTEL complaining of the same ongoing telephone faults (refer to Chapter 4 The New Owners Tell Their Story).

Not to be outdone, at the age of 68 in 2008, I took the government to task for withholding relevant pre-arbitration discovery documents that the government had initially been promised the COT Cases, which included me in March 1994, they would release to us when we signed our arbitration agreements in April 1994 (which we did),

During my ten-month Administrative Appeals Tribunal (AAT) with the government communications regulator (now called ACMA), I was told unofficially the government had branded me vexatious and my claims frivolous. Mr G.D. Friedman (Senior Justice of AAT) heard my case against ACMA, advising them they should provide me with all requested Freedom of Information (FOI)documents they had previously concealed leading up to and during my arbitration.

Mr G.D Friedman told the two government lawyers representing ACMA that in the name of fair justice, ACMA should provide me with what I sought during that AAT hearing.

It is now June 2023, and I am still waiting to receive those documents from the government, but what I have got is the transcript of my AAT hearing on 3 October 2008, where Mr G.D Friedman stated to the two government lawyers and those attending my case (refer to Chapter 9 - The ninth remedy pursued) .

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

COPY OF MY STORY

“There is no greater agony than bearing an untold story inside you.”

― Maya Angelou

Absentjustice is a work in progress, last edited June 2023.

Clicking with your mouse/cursor on the link behind the various images displayed below will take you to a story of deception and wrongdoing during the Australian government-endorsed arbitration, which was administered by the Telecommunications Industry Ombudsman (TIO) who had seconded from Telstra, a technical consultant to investigate the Ericsson AXE telephone exchanges that the COT Cases were saying were destroying their businesses even at the time they were in arbitration. However, as our COT story shows, the TIO did not pay Grant Campbell, who had seconded Mr Campbell.

Mr Campbell, while still employed by Telstra, went on to mislead various parties about my complaints of ongoing Ericsson telephone exchange faults. So as you work through this complex story, make sure you click each of the images to gain a better understanding of this story.

Please note: the placing of the aforementioned links behind the images is currently being implimented as should be finsihed by 4 June 2023.

Thank you.

Introduction

Absent Justice - My Story - Alan Smith

And so my telephone saga began

My name is Alan Smith. This is the story of my battle with a telecommunications giant and the Australian Government, a battle that has twisted and turned since 1992, through elected governments, government departments, regulatory bodies, the judiciary and the Australian telecommunications giant, Telstra. This story commenced in April 1988 and is still, being ignored by the government.

This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. The story of how for years Telstra refused to address the many phone problems that were affecting the capacity of the COT Four to run their businesses, telling them 'No fault found,' when documents in this publication and on our website show they were found to have existed as our story shows.

How Telstra and its legal arbitration defence team perverted the course of justice by using such dubious strategies as intercepting relevant faxes, failing to deliver crucial FOI documents (or delivering them months and even years too late, often so highly censored that little intelligible remained), even destroying documentary evidence and fabricating evidence.

How the central points of our claim at arbitration was ignored by the arbitrator and how no amount of effort to have these points addressed bore any fruit. How, in the course of all these travesties, the regulatory bodies — Austel (for the government) and the TIO (for the carriers) — failed to exercise any control over Telstra to the point where they could reasonably be seen as acting in concert.

Together, these travesties spell a breakdown of justice, way out of proportion to the problem we began with — people asking that their phone services be guaranteed to work to a reasonable standard so that they can reliably conduct their businesses.

Each of the COT members assumed, as most telephone users would assume, that their phone faults would be quite easily found and fixed by Telstra's skilled technicians. But 'No fault found' was the constant refrain, and the problems continued unabated throughout the course of our arbitrations, and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone the system is supposed to work for everyone. What was going on?

Absent Justice - Privacy

Turning a blind eye to what was unlawful behaviour

And why did it seem everyone was protecting Telstra, turning a blind eye to what was unlawful behaviour? Withholding important discovery documents in an arbitration procedure is unlawful. Tampering with evidence in the arbitration is unlawful Tampering With Evidence. Relying on defence documents that are known to be flawed in arbitration is unlawful Telstra's Falsified SVT Report and Telstra's Falsified BCI Report. The TIO and Austel often refused to act; Members of Parliament, when in Opposition, were happy to provide support for the COT cause, but as soon as the government was theirs, that support vanished. No one was prepared to make Telstra accountable. It was enough to make the most level-headed person suspect conspiracies.

This probably means that anyone from the current generation who might pick up a copy of my story Absent Justice Book 2 or view this website absentjustice.com will find it difficult to understand how it can be that, just twenty or so years ago, a corporation like Telstra (and its government minders) were able to cheat, and cheat, and continue to cheat so many Australians into believing that they were trying to repair the ailing Australian telecommunications network when, instead, they were band-aiding the many serious problems that existed in Australia's communications network. And why were they attempting to postpone this expenditure? Because privatization was on the government agenda and, within Telstra, the attitude from the top brass down was one of 'let the shareholders foot the bill after privatization', and this was the only answer to the ongoing problems that were causing devastating problems for businesses around the entire country.

It is important to stress here that every single detail recorded on this website is not only true but is also supported by irrefutable evidence that can now be readily accessed directly from the website. It is also important to note that, as the result of a recent discussion with other members of the COT group (even though two of them are very sick at the moment) we decided that, considering the stress that we are all still suffering, it would be better to release our stories to the public just as they are on the website now, even if this is not exactly how we had hoped to present them in January 2015, when we began to put the website together.

When clicked on, the three Telstra network images below show my claims are valid and are an excellent reason to continue with this story.

Chapter 1

Absent Justice - Poor Copper Network

No Fault Found

Have you ever had a reason to complain about your phone bill?

Has a friend insisted they have telephoned you, and you had not answered, even though you know you were right beside the phone at the time?

Has anyone expressed amazement at how much time you spend on the phone or prospective clients rebuked you for being unprofessional and not answering your phone when you know it has not rung for days and you have hardly made any outgoing calls?

If you have experienced even one of these situations, you will understand why I sometimes feel I have lived through a nightmare. I experienced all these problems and more for almost ten years. I am still seeking an equitable resolution of them.

The saga began in late 1987 when my wife Faye and I bought a holiday camp accommodation business perched high above Cape Bridgewater, near Portland on the southwest coast in country Victoria. The Cape Bridgewater Holiday Camp had been run as a school camp, and we intended to turn it into a venue for social clubs and family groups as well as schools.

The Camp was a decidedly phone-dependent concern, the phone was the preferred access to us for city people — and our big mistake when we fell in love with the place was to fail to look-into the telephone system. In those days there were no mobile coverage and business was not done via the internet or by email. In fact, the business was connected to a phone exchange installed more than 30 years before and designed specifically for 'low-call-rate' areas. This antiquated and unstaffed telephone exchange had only eight (8) lines. It was never intended to handle the volume of calls made by a larger population plus holiday makers when Faye and I took over the business. In blissful ignorance, we went ahead with the sale of our home in Melbourne, and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.

Absent Justice - Cape Bridgewater Holiday Camp and Residence

I knew this was a business I could run successfully

I knew this was a business I could run successfully. From the age of 15, when I went to sea as a steward on English passenger/cargo ships, I had worked in areas that prepared me for the hospitality trade. In 1963 I jumped ship in Melbourne to work as an assistant chef in one elite hotel after another, then two years later, I joined the Australian Merchant Navy. By 1975, I had been a chef on many Australian and overseas cargo ships and now returned to land.

Faye and I had married in Melbourne in 1969, and I worked freelance in the catering industry and on tugboats while I studied for a hotel/motel management diploma. I had already taken on the management of one hotel/motel and pulled it out of receivership to be re- leased. By 1987, at the age of 44, I had enough experience behind me to be confident that I had the skills and knowledge to turn a simple school camp into a successful multifaceted concern.

I made personal visits to almost 150 schools and shires to extol the virtues of the Camp, and in February 1988, had some 2000 colour brochures printed and distributed. Then we waited for the phone to ring with inquiries, in vain. There was not even a modest 1% inquiry rate as a result of this marketing exercise.

By April we were beginning to realise the problem might lie with the telephone service. People asked why we never answered our phone or were suggesting we install an answering machine to take calls when we were away from the office. We had an answering machine, but even after installing a new one, the complaints continued, coupled with comments about long periods when the phone was giving the engaged signal.

As time went on, call 'drop-outs' added to our problems when the line just went dead in the middle of a call. If the caller hadn't yet given us contact information and didn't ring back, we lost that contact. Between 19 April 1988 and 10 January 1989, Telstra logged nine separate complaints from me about the phone service plus several letters of complaint. A typical response to my 1100 call (the number you called when there was a problem) was a promise to check the line. A technician was sent out on rare occasions, whose response was inevitable 'No fault found' while my problems continued unabated.

Eventually, we discovered that the business's previous owner had endured the same problems and had complained equally unsuccessfully about them. In 1988, when I was beginning to marshal my case against Telstra, I obtained several documents through the Freedom of Information Act (FOI). According to a document headed 'Telstra Confidential: Difficult Network Faults — PCM Multiplex Report', with a sub-heading '5.5 Portland — Cape Bridgewater Holiday Camp', Telstra was aware of the faults in early 1987.

Harry, our next-door neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Fred, another local and once the owner of Tom the Cheap grocery chain, suffered from similar problems to ours for many years. He commiserated, saying, 'But what can you expect from Telstra when we're in the bush?' Well, I expected better than this, and certainly, we were promised better than this.

We encouraged people to write, but the telephone culture was endemic. People wanted an immediate response. As bookings dwindled instead of increasing, I began to feel I hadn't properly researched the pros and cons before moving to Cape Bridgewater. I was beginning to question what I had done, asking Faye to agree to sell the family home so that I could satisfy my ambition to run my own business. It was not the fun I had anticipated. I was operating in a state of constant anger, a very unamusing Basil Fawlty.

We went touring South Australia to sell the concept of our Camp through the Wimmera area, but responses were few. Was it the phone to blame? How could, we be sure? The uncertainty itself added to the stress.

Absent Justice - Portland Lighthouse

Sometimes the culprit was blindingly obvious. I was soon labelled a vexatious litigant, and my claims frivolous. On a shopping expedition to Portland, 20 kilometres away, I discovered I had left the meat order list behind. I phoned home from a public phone box, only to get a recorded message telling me the number was not connected! I phoned again to hear the same message. Telstra's fault centre said they would look into the matter, so I went about the rest of the shopping, leaving the meat order to last. Finally, I phoned the Camp again, and this time the phone was engaged. I decided to buy what I could remember from the list and hope for the best; however, I was not surprised when I got home to learn the phone had not rung once while I had been out.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA): 'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged what I later discovered among 1994 FOI documents, an internal Telstra memo stating: -

'This message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.' AS-CAV Exhibit 1 to 47

Another Telstra document referred to the need for

a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around, we will find a host of network circumstances where inappropriate RVAs are going to line. (AS6 file AS-CAV Exhibit 1 to 47

It seems the 'not connected' RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often as the following Telecom/Telstra Folio C04006, C04007 C04008 document shows.

Why were Folio C04006, C04007 and C04008, headed TELECOM SECRET Front Page Part Two 2-B) not provided to the arbitrator hearing my case before Nine Telstra employees swore under oath my Telstra arbitration complaints were perceived problems?

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

For a newly established business like ours, this was a major disaster. Still, despite the memo's acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints, I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, 'No fault found' was the finding by technicians and linesmen.

The frustration was immense, coupled with uncertainty. Were our problems no more than general poor rural service compounded by the congestion on too few lines going into an antiquated exchange? The Camp was, at that stage, the only accommodation business being run in Cape Bridgewater. Obviously, we relied on the phone more than most people in the area. But if there was some specific fault, why weren't the technicians finding it?

The business was in trouble, and so were we. By mid-1989 we were reduced to selling some shares for our operating costs. Here we were, a mere 15 months after taking over the business, and we were beginning to sell off our assets instead of reducing the mortgage. I felt like a total failure. Neither of us was able to lift the other's spirits.

I decided to do another round of marketing in the city. I would give it all I had. We both went. Was it masochism that made me ring the Camp answering machine, via its remote access facility, to check for any messages so that I could respond to them promptly? Whatever it was, all I could get was the recorded message: 'The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' On the way home, just outside Geelong, we stopped at a phone box, and I tried again. Now the line was engaged. Perhaps somebody was leaving a message, I thought. Ever hopeful.

There were no messages on the answering machine. And nothing to be gained by asking why I had received an engaged signal. How many calls had we lost during the days that we were away? How many prospective clients had given up trying to get through because a recorded message told them the phone was not connected? Anger and frustration were very close to the surface.

Near the end of October 1989, our twenty-year marriage ended. I had already been taking prescribed drugs for stress; that afternoon, I added a quantity of Scotch and hunkered down in one of the cabins. Faye, understandably, was seriously concerned and called the local police, who broke into the cabin to 'save' me from me. They took me to a special hospital, and I am forever grateful to the doctors who confirmed that I wasn't going 'nuts' and who sent me home the following day.

While I was in this particular hospital in Warnambool (southwest Victoria), my friends Margaret and Jack from Melbourne, who were well aware of what had happened to me in China, decided that Margaret would come to Warnambool and take me home to the holiday camp which was 110 kilometres away 'bail me out'. The fun, however, had just begun for me and Margaret.

Margaret and I arrived back at the Camp to be confronted with a disaster area. Faye had left the night before, following advice from various people that she needed to be in a 'safe house'. Doors had been left unlocked, meat from the deep freeze was left out on benches, and various items had mysteriously vanished. And, according to the Camp diary, 70 students from Monivae Catholic College in Hamilton were due to arrive in two days, booked in for five days and four nights. Without Margaret's assistance, I would have been wiped out.

Mourning the end of my marriage, the very thought of shopping was a mountain I didn't want to climb. What to feed 70 students plus staff? By the time I got my head around what to order, it was Sunday evening, and the Monivae group were due the following day. Then the hot water service broke down!

The staff were not happy about cold showers! Even so, for the next five years, Monivae College returned two and sometimes three times a year. Their support throughout this awful period helped me keep trading.

And, of course, Margaret's support. She carried so much through that first week. Aware that I was holding on by my fingernails, she suggested Brother Greg, one of the Monivae teachers, come to the house to talk to me. It was an inspired suggestion, and we talked well into the night, Margaret too, working through many things, from early childhood experiences to the end of twenty years of marriage.

Absent Justice - My Story - Joker One

I began to keep a log

In the weeks that followed, my phone problems continued unabated. I began keeping a log of phone faults, recording all complaints I received in an exercise book, along with names and contact details for each complaint and a note regarding the effect these failed calls were having on both the business and on me.

One day the phone extension in the kiosk was dead. The coin-operated gold phone in the dining room, which was on a separate line, had a normal dial tone, so I dialled my office number, only to hear the dreaded:

'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.'

I was charged for the call because the phone did not return my coins! Five minutes later, I tried again. This time the office phone appeared to be engaged (it wasn't), and the gold phone happily regurgitated my coins.

I used this testing routine frequently over the next months and registered every fault I found with Telstra. The situation was beginning to tell on me. Why was this still happening after so many complaints? Could Telstra really be this incompetent? Or was there something worse going on? Had I made too much of a nuisance of myself? But that was ridiculous. Under the circumstances, I had behaved impeccably politely … when in fact, I had fantasies of sheer violence at times.

Now I was no longer one half of a working husband and wife team, and I started 1990 digging into my pitifully low financial reserves to pay staff or risk losing everything. I was suffering what is commonly known in the world of finance as a 'consequential resultant loss' — Faye was no longer contributing her unpaid labour. I now had to pay her a yearly dividend on her financial investment in the business.

The future looked grim. Telstra did not attempt to remedy the faults or at least no attempt that made any difference. The constant refrain of 'No fault found' was wearing very thin. I found it hard not to dwell on how many prospective customers night be lost because they couldn't reach me by phone. Nor was it long before the legal vultures were circling. I hadn't met my financial agreement with Faye, and her solicitor was demanding money. I was having trouble meeting my own legal costs, let alone finding any extra. My son's school fees were overdue, and to pay some of the mounting debts, I sold the 22-seater school bus I had originally used to ferry customers around and purchased a small utility in its place.

On the positive side, I had met a woman called Karen, who lived in Warrnambool. Our relationship developed to become quite serious. When Karen knew I was about to wind up my business because I couldn't raise funds to make any more payments to Faye, she put her house up as security for a loan, thereby giving me two years of breathing space. She believed in me, and she believed in the capacity of the Camp to succeed. She wanted to be a partner in it. This was early in 1991.

Things were starting to look up, especially when I discovered that a new exchange was to be installed later in the year at Cape Bridgewater. I was hoping this would alleviate all the problems of congested lines. It was just a question of time. Karen moved in with me, and we worked together with new energy to pull the business out of the doldrums.

In August that year came another joy when I got the first confirmation from someone within Telstra that they knew my phone problems were real. I felt such a relief that the faults were, at last, being acknowledged, and I asked for my new friend's name. I was so happy; I didn't even really register any perturbation when all he could tell me was that he worked at the fault centre in Hamilton.

According to Telstra's own file note:

Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it's not engaged …

This has been a continuing problem and he is losing a lot of business.

I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs.

I also said we would have a look at the service now to try and get it working correctly until cutover. (AS4 file AS-CAV Exhibit 1 to 47 .

At last, someone in Telstra had given me something to hang on to. When Karen sold her house, a part of the proceeds went towards paying my legal fees and my debt to Faye. I paid Faye out, and Karen's name was now officially on the title to the business. We counted the days to the installation of the new exchange.

But the triumph of a new exchange when it came at the end of August 1991 was the briefest of victories. It made not the slightest difference. The telephone problems continued just as before. However, now exacerbated by the dreadful disappointment that the war wasn't over at all. Increasingly, people reported complaints of recorded voice announcements, and I continued to complain to Telstra about faults which seemed to me to be getting worse, not better. I asked technicians if a new exchange didn't correct the problems, then where could the faults lie? Their response was unbelievable: 'No fault found.' They simply refused to engage with my question. I cursed the fact that I had no contact details for the one person who had acknowledged that there were faults. I did not see the file note he wrote until 1995.

New bookings continued to be rare. The Camp was getting in need of painting and upgrading. The business looked sad and bedraggled, and so people who passed by were not interested in stopping. And when we did have a booking, cash flow was a problem, making it tricky to put food on the table. We somehow always managed, but it was very stressful. Karen was starting to see her investment going down the drain, and the strain on her came to a head while we were in the middle of organising a charity camp for under-privileged children.

Despite the financial precariousness of the enterprise, I had from the start sponsored the stays of under-privileged groups at the Camp. It was no loss to me really: sponsored food was provided through the generosity of a number of commercial food outlets, and it cost me only a small amount in electricity and gas.

In May 1992, we held a charity week for kids from Ballarat and South-West Victoria, organised largely by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat. Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact. The Calls were either ringing out or she was getting a deadline — no sound at all. Finally, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements.

Absent Justice - My Story - Loretto College

Testimonials

Between April 1990 and when I sold the holiday camp in December 2001, I continued to partly sponsor underprivileged groups to stay at the camp during the weeks (that became years) when the phone problems continued to beset the holiday camp. At least some money was coming into the business. Those wanting a cheap holiday persisted by telephoning repetitively regardless of being told the camp was no longer connected to Telstra's network. These groups wanted a holiday, and if they had to drive for hours to make a booking as Loreto College did (see below), then a drive they did.

The holiday Camp could sleep around 90 to 100 persons in fourteen cabins. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat, and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact, Calls were either ringing out or she was getting a deadline, or a message that the number she was ringing was not connected to the Telstra network. Sister Burke knew otherwise. On two particular occasions in 1992, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements for those camps.

Just as she arrived at the Camp, Karen took a phone call from a very angry man who wanted information about a singles weekend we were trying to set up. This caller was quite abusive. He couldn't understand why we were advertising a business but never answered the phone. Karen burst into tears. She had reached the end of her tolerance, and nothing I could say was any help. When Sister Burke appeared in the office, I decided absence was the better part of valour and removed myself, leaving the two women together. Much later, Sister Burke came out and told me she thought it probably best for both of us if Karen were to leave Cape Bridgewater. I felt numb. It was all happening again.

But it wasn't the same as it had been with Faye. Karen and I sat and talked. True, we would separate, but I assured her that she would lose nothing because of her generosity to me, that I would do whatever was necessary to buy her out. We were both relieved at that. Karen rented a house in Portland, and we remained good friends, though, without her day-to-day assistance at the Camp, which had given me space to travel around, I had to drop my promotional tours.

Twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, tried to make contact via the Portland Ericsson telephone exchange to arrange an annual camp. Sister Donnellon later wrote:

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”

Some years later, I sent Sister Burke an early draft of my manuscript Absent Justice My Story‘ concerning my valiant attempt to run a telephone dependent business without a dependent phone service. Sister Burke wrote back,

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Of course, Sister Maureen Burke and Sister Karen Donnellon persisted with their continuing battle to find a way to get a proper telephone connection for the holiday camp, partly because it was a low-cost holiday for all concerned but also because these wonderful women were well aware that my business was continuing to exist, albeit ‘by the skin of its teeth, even though Telstra’s automated voice messages kept on telling prospective customers that the business did not exist or, alternatively the callers simply reached a dreaded silence that appeared to indicate that the number they had called was attached to a ‘dead’ line. Either way, I lost the business through that may well have followed if only the callers could have been successfully connected to my office via this dreaded Ericsson AXE telephone exchange.

A letter dated 6 April 1993, from Cathy Lindsey, Coordinator of the Haddon & District Community House Ballarat (Victoria) to the Editor of Melbourne’s Herald-Sun newspaper, read:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.” ( See Evidence File 10 B )

During this same period, 1992 and 1993, Cathy Lindsey, was a professional associate of mine Cathy signed a Statutory Declaration, dated 20 May, 1994 explaining a number of sinister happenings when she attempted to collect mail on my behalf from the Ballarat Courier Newspaper office (AS-CAV Exhibit 1 to 47 - See AS – CAV 22). This declaration leaves questions unanswered as to who collected my mail and how did they know there was mail to be collected from the Ballarat Courier mail office. On both occasions, when this mail was collected by a third person, I had telephoned Cathy, informing her the Ballarat Courier notified me there was mail addressed to me waiting to be picked up.

On pages 12 and 13 transcript, from the AFP inquiry into my allegations that Telstra unlawfully intercepted my telephone conversations, the AFP state at Q59 Australian Federal Police Investigation File No/1:-

“And that, I mean that relates directly to the monitoring of your service where, where it would indicate that monitoring was taking place without your consent?” (AS-CAV Exhibit 1 to 47 - See AS – CAV 23-A)

I also provided the AFP Telstra documents showing Telstra was worried about my telephone complaint evidence because if it ever reached an Australian court, I had a 50% chance of proving Telstra has systemic phone problems in their network, which meant in simple terms, Telstra was operating outside of their license to operate a telephone service where charging their customers for a service not provided.

21st April, 1993: Telstra internal email FOI folio C04094 from Greg Newbold, to numerous Telstra executives and discussing “COT cases latest”, states:-

What these Telstra executives were forgetting is that Telstra was a publically owned corporation. Therefore, those executives were responsible for ensuring the integrity of Telstra's working conditions, something which Telstra has never even understood.

Absent Justice - My Story

Children's lives could be at risk

Comments made from the Herald Sun newspaper dated 30 August 1993, confirm just how damaging some of these newspaper articles were to my already ailing business with statements like:

“The Royal Children’s Hospital has told a holiday camp operators in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.

The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”

Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed” (Arbitrator File No/90)

After the Melbourne Children's Hospital recorded a near-death experience with me having to rush a sick child with cancer to the Portland Hospital 18 kilometres away from my holiday camp, Telstra finally decided to take my telephone faults seriously. None of the 35 children (all with cancer-related illnesses) had mobile phones or the six or so nurses and carers. Mobile telephones could not operate successfully in Cape Bridgewater until 2004, eleven years after this event. With my coin-operated Gold Phone also plagued with phone problems, it took several tries to ring out of the holiday camp. An ambulance arrived once we could ring through to the Hospital.

It took this almost tragedy for Telstra, after five years, to send someone of real technical experience to my business. Telstra's visit happened on 3 June 1993, six weeks after the Children's Hospital vowed never to revisit my camp until I could prove my camp was telephone fault free. No hospital where convalescent is a good revenue spinner has ever visited my business, even after I sold it in December 2001.

It was another fiasco that lasted until August 2009, when not so new owners of my business was walked off the holiday camp premises as bankrupts.

Chapter 2

Casualties of Telstra

Back to July 1992, when Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat visited the holiday camp to discuss the activities I had organised for the Children, Karen, my partner who had joined me three years after my marriage break up to Faye, had heard of a restaurant in Melbourne suffering the same phone problems that was crippling my business. It seemed then, that Sister Maureen Burke IBVM was around at some of my very difficult times when trying to run a telephone dependant business without a reilable phone service.

I felt a great comfort in hearing this and knew I needed to meet the owner. Making phone contact with the restaurant was difficult; eventually, I got through to Sheila Hawkins, proprietor of The Society restaurant in Bourke Street, in the centre of the city. We arranged to meet, and I travelled to Melbourne in early August.

It was so good to talk to someone who experienced similar problems. And there were more of us. Sheila knew of an Ann Garms who ran the Tivoli Theatre Restaurant in Brisbane, who was also having serious telephone problems. Back in Cape Bridgewater, I rang Ann to discover she was coming to Melbourne the following week to register her own complaints with Austel, the Australian Telecommunications Regulator. We arranged to meet together with Sheila. I went into the city again for the meeting, where Ann mentioned another Brisbane business in similar trouble — a car parts company run by Maureen Gillen. Like Ann's business, Maureen's was trunked off the Fortitude Valley exchange. Sheila, meanwhile, had contacted Graham Schorer, who somehow ran the Golden Courier Service out of North Melbourne — despite a very bad phone service.

Finally, our little group gathered together at Sheila's restaurant in Bourke Street, except for Maureen, who couldn't make the journey from Brisbane. It was Sheila who suggested we call ourselves COT — Casualties of Telstra. This was one of her last actions with the group as she withdrew shortly after due to ill-health.

At the top of the list of problems we held in common were those three little words: 'No fault found.' It wasn't just that we all had to put up with ongoing service faults. Telstra's evasion of responsibility in this regard made those faults a nightmare. Telstra had a duty to deliver us service up to a recognised network standard, and by failing to 'find' their faults, they were effectively avoiding carrying out their statutory obligation.

In October 1992, COT had its first official meeting with Telstra at the Ibis Hotel in Melbourne. We were a united and optimistic group of small-business telephone users on our way down the path to justice. We had no idea what a long haul we were in for. Indeed, this first meeting felt eminently successful. Telstra sent three executives; they treated us courteously, and we felt that our claims were being taken seriously. We were seen and treated as a concerned group of small-business people who Telstra had consistently ignored. We asked for Austel (the government regulator) to be the 'honest broker' in our matters, and the executives agreed to this. They took the documentary evidence we had brought, and at the end of the meeting, we were left with a sense that it was all soon to be resolved.

After that initial meeting, there were a number of meetings with Telstra and Austel. Based as he was in the city, Graham Schorer was the COT representative. Under pressure from Austel, Telstra was acknowledging that faults existed, though they still held back from admitting the scale of faults we knew to be true — and indeed, as it turned out, that they too knew it to be true.

Guaranteed to Network standard

Meanwhile, in July 1992, I was obliged to ask Telstra to guarantee that my phone service was up to standard. A bus service wanted such a guarantee (in case of urgent communication needs) before it would contract to bring groups to the Camp. Although I did not see how Telstra could guarantee such a thing based on current performance, I thought a guarantee might have some use as leverage.

Not one but two guarantees eventually arrived (in the event, both too late to secure the contract with the bus company). The first stated that my phone service was indeed 'up to network standard':

Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted. 1 September 1992 (AS12 file AS-CAV Exhibit 1 to 47

The second stated:

We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours. 18 September 1992 (AS13 file AS-CAV Exhibit 1 to 47

Now I need to jump ahead of myself here. Material that I did not have access to at the time now reveals something of what was going on in the telephone exchange while my business was sinking.

In 1994 we COT members all ended up involved in arbitrations with Telstra. According to the rules of arbitration, Telstra had a legal obligation to provide us with relevant documents under the Freedom of Information Act.

You will hear a lot more about this in due course, not least about the unreasonable time it took for FOI document requests to be delivered (often years too late). Enough to say here, that in an FOI release in mid-1994, I received documents referring to the general congestion problem at Cape Bridgewater.

The second paragraph of a document titled 'Subject PORTLAND – CAPE BRIDGEWATER PCM HBER' of 12 July 1991 was of particular interest:

When the 'A' direction of system 2 was initially tested, 11,000 errors per hour were measured. In the 'B' direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.

This level of error was, in fact, known at least as early as February 1990, the very time my complaints were being stonewalled. And nor was it acknowledged to me at the time of writing (July 1991). And in the new exchange, the problems continued, as another document, titled 'Portland — Cape Bridgewater — RCM System' showed, referring to the information logged in March 1993, long after Telstra had first reported these massive error rates:

Initial error counter readings, Portland to Cape Bridgewater direction:
	System 1	System 2	System 3
SES	0	0	0
DM	45993	3342	2
ES	65535	65535	87
At this stage we had no idea over what period of time these errors had accumulated. 12 July 1993 (AS30 file AS-CAV Exhibit 1 to 47

The second page of this document explains why they 'had no idea over what period of time these errors had accumulated':

The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.

They didn't know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had been left unconnected. Since this was an un-manned exchange, no one could know when faults occurred — except, of course, us poor, defenceless customers.

Meaning that in September 1992, when Telstra management had written to me stating that the quality of my telephone service was guaranteed as up to network standard, they had failed to realise that this alarm had not been connected. Even the local telephone technicians were oblivious to the call loss due to the unconnected alarm system in the exchange. What kind of investigation into the faults I had reported over several years does this demonstrate? A farcical one. How, for several years, could they fail to notice that the alarm wasn't connected?

A compensation deal

The formation of COT had come not a moment too soon for me. The frustration of struggling with problems that seemed immune to complaints and about which I could do nothing but complain could finally be shared. I had lost faith in my own judgement by this time; I had let down two different partners who had trusted me, and I was now borrowing from friends just to keep the Camp running on a day to day basis. Through all of this, of course, the phone faults implacably continued.

The COT group continued to negotiate with Austel and Telstra. In late 1992 our combined pressure finally produced results: Telstra approached me with a proposal for a compensation payout which included a confidentiality agreement to the effect that I would not disclose the value of any settlement which resulted from this. I signed this agreement on 11 December 1992, and I have honoured my word not to disclose the amount of the payout without prior approval by Telstra.

That same day, I went to Telstra's city fault centre, where the area general manager and I began a long discussion regarding the extent of my financial losses over the four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and tradespeople, describing their experiences trying to ring me. I explained how I had calculated the sum of my losses.

On a number of occasions, the manager left me alone to examine the documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and added that I was free to use the telephone if I needed to discuss anything with my advisors. There was a direct outside line available at all times, so I wouldn't need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer; together, we calculated how much I needed to repay her.

The documents provided by the manager were mostly hand-written and included copies of the so-called 'guarantees' I had received. According to one of the documents. Points 73 to 109 AUSTEL’s Adverse Findings shows there was only a 'single' fault, lasting only three weeks, that triggered the recorded message (RVA) that my number was not connected. This document claimed that the RVA probably caused me to lose only about 50% of all incoming calls over these three weeks. Other documents referred to a minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. The manager told me Telstra agreed to accept responsibility for these faults if I agreed to their offer.

I protested and reeled off again the continuing and constant complaints I had been getting from customers. Her response was a simple 'take it or leave it': this was Telstra's last offer, she told me, and the only other avenue I could follow would be court proceedings. Her final comment was along the lines that, 'Telstra has more time than you have money to fund court proceedings.' Reluctantly, but feeling I had no other choice, I accepted. My reluctance was well justified.

By August 1993 came my first bundle of FOI documents from Telstra. In it, astonishingly, it was a Telstra minute of 2 July 1992, which revealed that local Telstra technicians regarded my complaints as correct about the 'service disconnected' RVA on my line. Not only that, the observation was made that the problem 'is occurring in increasing numbers as more and more customers are connected …' Senator Alston raised this document in Senates Estimates in February 1994, demanding a response from Austel. No response was forthcoming, and nowhere else did this revelation gather any advance for my cause i.e.:

Absent Justice - Welcomed Call

Ericsson AXE faulty telephone exchange equipment (2)

“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

“They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.” (See False Witness Statement File No 3-A)

To further support my claims that Telstra already knew how severe my Ericsson Portland AXE telephone faults were can best be viewed by reading Folios C04006, C04007 and C04008, headed TELECOM SECRET (see Front Page Part Two 2-B) which states:

And two years later, I received a copy of an FOI document headed Telecom Secret. (AS5 file AS 1 to 47) This was a copy of the notes brought by the manager to the settlement meeting. The opening page, reproduced here, shows all too clearly that Telstra knew how solid my case was. The manager had blatantly misled me into agreeing to sign.

My acceptance of the offer notwithstanding, I continued to experience faults in my phone service. Particularly call drop-outs when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called 'Elmi' machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.

When the COT Cases exposed this Ericsson AXE call loss rate to AUSTEL (the then government communications regulator) AUSTEL (now ACMA) instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL’s Chairman Robin Davey received a letter from Telstra’s Group General Manager, suggesting he alter that finding:

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request. The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.

The fact that on this occasion on 9 April 1994 Telstra (the defendants) were able to pressure the Government Regulator to change their original findings in the formal April 1994 AUSTEL COT Case report is alarming, to say the least. Worse, is that when AUSTEL released it into the public domain the report states AUSTEL only uncovered 50 or more COT-type complaints.

50 COT-type customer AXE complaints in comparison to 120,000 COT-type customer AXE complaints is one hell of a lie told by the government to its citizens who voted them into power.

ACMA Australian Government

False Reporting

For a the government regulator to reduce their findings from 120.000 COT type complaints to read just 50 or more COT-type customer complaints is one hell of a lie told to its citizens. Were the governments downplaying of the Ericsson AXE fault complaints part of the overall collusion which involved the purchasing of Lane Telecommunications Pty Ltd who often worked on government contracts?

Because the faulty Ericsson AXE telephone equipment played such an important part in the COT Cases 1994 to 1999 arbitration procedure I have introduced it here along with the selling off of Lane Telecommunications Pty Ltd (the arbitration technical unit) to Ericsson the very corporation it had been commissioned to investigate. during the COT arbitrations.

How can an Australian company like Lane be sold off during an Australian government-endorsed arbitration to a Swedish International telecommunications company it is investigating? If this is not collusion and corruption of the worse possibly kind, then what is?

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications Ptd Ltd) was a witness to what the COT claimants and arbitrator had uncovered against Ericsson to be purchased by the very same company who were officially under investigation. This purchase bought the silence of Lane once the money was in the bank. The career politician again had closed their eyes to this collusion, regardless of how unethical all this had become with one aim in mind to ensure the COT Cases were "stopped at all costs" from proving their arbitration claims (See pages 36 and 38 Senate -Senate - Parliament of Australia).

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra before Ericsson purchased Lanes? Is there a link between Lane ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process? Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (see Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued?)

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers visit my website absentjustice.com where you can see, yourself, that my claims against Telstra and Ericsson are valid.

Purchasing all of Lane Telecommunications' COT related arbitration files (during the COT arbitrations) was a most significant coup for both Telstra and Ericsson because all of the arbitration technical information Lane had acquired as a witness during the COT arbitrations which were stored in Lane's computer system as well as in hard copy records belonged to Ericsson once they owned Lane.

What the Australian government appears not to have considered when they allowed Lane to be sold off during our government endorsed arbitrations is that Lane had signed a Confidentiality Arbitration Agreement in which each of the COT claimants also signed agreeing under no circumstances, they would disclose to a third party any information they obtained during the COT arbitrations. And here Lane is the main arbitration witness allowed to sell that confidential acquired information to Ericsson, who Lane had been assigned to investigate.

it is on record, that when Lane together with Telstra and me visited the Portland Ericsson AXE telephone exchange and the Cape Bridgewater unmanned switching exchange on 6 April 1995 both Lane and Telstra would not allow me to view the Portland Ericsson AXE log book. It is most important I attach here the following link although dated 1996 all Ericsson exchanges had their own logbooks (see page 20 > http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%. It is also on record that the arbitrator would not access this logbook under the arbitration discovery process. Even the Commonwealth Ombudsman (during my arbitration) tried to acquire this same logbook using my FOI applications but was unsuccessful.

If the hackers mentioned on our webpage Hacking Julian Assange/Chapter One were Julian Assange and his friend, and it is very likely it was them, then why hasn't the Australian Government understood what the hackers wanted to share with us COT cases? He did not ask for payment in sharing what he and his friends had uncovered concerning Telstra’s ailing copper wire network, as would have been the case if he had been a common criminal. He wanted us to have a fair arbitration hearing, and that was all. Had we used the information on offer, then the arbitrator would have been compelled to demand that Telstra fix its degraded Ericsson exchange equipment, instead of bringing down his findings which did not disclose the true extent of the corroded network that was destroying the COT cases' businesses and numerous other telephone dependent businesses throughout Australia.

This part of the story is of my battle with the first and second Telecommunications Industry Ombudsman and the Australian Government, a battle that has twisted and turned since 10 November 1993, through elected governments, government departments, regulatory bodies, the judiciary and the Australian telecommunications giant, Telstra. This part of the COT story commenced on December 1993 (see TIO Evidence File No 3-A an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

Absent Justice - Bell Canada International

I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00

Why didn't AUSTEL investigate the ELMI Tapes I provided them in August 1993, which were inadvertently left in Telstra's Briefcase on 3 June 1993, which confirmed on 13 October 1992 that Telstra had lied about the ongoing drop-out calls to my business which the ELMI tapes show arrived. Still, Telstra stated the Tapes did not record this activity when the tapes show otherwise. Who within the government communications regulatory office concealed these wrongs by Telstra (see directly below)?

On 13 October 1992, I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a deadline. Despite the Elmi machines, the Telstra technicians found no faults that they could detect as they had in so many instances before. What was going on?

I raised these Elmi non-connected calls with AUSTEL (as a matter of public interest) twelve months later after I proved to AUSTEL's John MacMahon that Bell Canada International Inc (BCI tests) could not have possibly conducted their testing at the Cape Bridgewater Addendum RCM switching exchange. And here Telstra was again lying about their testing at the Cape Bridgewater RCM switching exchange, this time regarding the failed Elmi testing (see AS11 file AS 1 to 47).

It was two years before I got any elucidation from Telstra, and even then, it shed no light on the matter. In 1994, in a bundle of FOI documents I received was a hand-written file note stating: -

'We had the Elmi disconnected at the RCM and were installing it at Mr Smith's house, and the CCAS showed no evidence of above 1.20, 1.40, 2.00 and 3.00.' (AS11 file AS 1 to 47).

This was simply not the case at all; I knew they were not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later, many documents arrived, including tapes that show that the call drop-outs and dead lines that I had experienced appeared on Telstra's monitoring equipment (CCAS) records as answered calls at approximately 1.30 pm and 3 pm.

I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and installed at my house when these two print-outs show that it was installed and operating at both locations incorrectly. I could only assume that all this reflected the competence and capacity of Telstra's fault centre, as well as the accuracy of their records and reportage. That thought alone was very worrying when you are reliant on the telephone.

And now I began to suspect that there might not be a simple answer to the phone faults, just waiting to be discovered and fixed. It looked as if the problems were endemic throughout the organisation and its infrastructure.

As I struggled from the end of 1992 to the New Year of 1993, I began to wonder if 'settling' with Telstra had been such a good idea. Nothing had changed. I had been forced to re-finance, incurring more set-up fees, and because I still couldn't afford to maintain the Camp properly and the place was looking decidedly abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!

The other COT members were no better off. Maureen and Ann had also accepted settlements directly from Telstra, while Graham had his through the courts. And for each of us, poor and faulty phone service continued unabated.

My only source of strength at this time was from my fellow COT members. One Saturday evening, a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the Camp as I pictured it but instead, I was trapped in a vicious cycle. Without customers, I would soon be completely broke, but the customers couldn't reach me because the phones didn't work. Right then, Graham Schorer rang, urging me to hang in there, convinced that we would win out in the end.

Yes, some calls did get through, in what proportion I shall never know, though perhaps the rate is indicated by the following story. In personal desperation, I decided to ring Don Burnard, a clinical psychologist the COT members had contacted when we started creating the group. Dr Burnard had written a report regarding our individual conditions, noting the breakdown in our psychological defences due to the excessive and prolonged pressures we endured:

All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.

I rang Dr Burnard for support, but my conversation with his receptionist was interrupted three times by phone faults. Later I received a letter from his office, saying:

I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.

Ann Garms and Graham Schorer had, by now, become my comrades in arms in this war we were fighting, and we had many group discussions as we tried to find a way to deal with the evasions and deceptions of Telstra management. But we were simply three small-business people struggling against the might of a huge corporation. Not encouraging odds! We wondered if we could ever be in a position to expose Telstra's unethical corporate strategies and continued and apparently deliberate mishandling of our complaints. And Ann, like myself, had begun to suspect that our phone lines were being bugged. I will return to this later once we were able to provide evidence that our concerns were valid.

Early in 1993, as a spokesperson for COT, Graham Schorer met with Robin Davey, the chairman of Austel (the telecommunications industry regulator), to discuss our way forward. Austel was sympathetic to our situation. It recognised we had been let down in our settlements and sought to establish a standard of service against which Telstra's performance could be objectively measured in any future settlements.

Meanwhile, COT decided it was time to try to inform the Australian Senate of our plight. We sent submission after submission, with supporting FOI documents, and followed through with visits to Canberra, financed from our already depleted pockets, to meet with ministers who were sympathetic to our case.

By now, I had accumulated more than seventy letters from customers who had been unable to reach me by phone. This example, from a Year 7 co-ordinator for Hamilton High School (now Bainbridge College), who brought his group along every February from 1990, is typical:

“I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week 1st to 5 March, I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was 'dead'. This was extremely frustrating and had I not been aware of Alan's phone problems, I would have used another camp site”.

Astonishingly, one letter, dated 17 May 1993, was from a senior Telstra technical engineer, who wrote regarding his own experience of trying to ring me:

“On the 24/2/93, I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267. I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts, i.e. 'answered', and I received a loud noise similar to a radio carrier noise and a very faint 'Hello'’.

At last, a second person inside Telstra acknowledged that I had a problem with the phone service! The engineer had even given me his name. Yet in the course of their defence of my arbitration claims, Telstra proffered a Witness Statement from this man (made in December 1994) that included no reference to my ongoint telephone problems.

Chapter 3

Legal Professional Privilege

Absent Justice - The Firm

The Firm - John Grisham

It was while all this skulduggery and deception was taking place and Denise McBurnie along with Freehill Hollingdale & Page had drained me of all my reserved energies to keep going, that I remembered the ruthless legal firm portrayed in the 1991 novel The Firm by John Grisham.

Both Telstra’s 14 April 1994 letter, to the Australian Federal Police (AFP), that admits at least one Telstra employee was intercepting my telephone conversations, and my 9 September 1994 response, concerning this unauthorised interception over an extended period, are now stamped “Protected AFP” material. The SENATE official Hansard clearly refers to Telstra’s conduct, stand-over tactics and threats towards the COT cases. The Senate Hansard, AFP transcripts (of conversations with me concerning these threats) and the Commonwealth Ombudsman’s records, all confirm Telstra carried out those threats against; yet neither the arbitrator nor the TIO addressed this during my arbitration. Why has no one ever addressed this unethical conduct publicly? Why is there no record, in the arbitrator’s award, exposing these threats? Why was Telstra allowed to make these threats and commit similar unlawful acts against the COT cases during their arbitrations? Neither the TIO nor arbitrator came to my aid or demanded answers to why a corporation can take control over arbitrations in a government-endorsed process.

Although the Freehill Hollingdale & Page - COT Case Strategy has been raised elswhere on this website it was again important to raise it right through my story because having to register phone complaints to a lawyer in writing brought on not just PSD, it stopped me focussing on what telephone calls that did make it through the minefield of a very congested telephone network.

During this turbulent period where it felt like I was in a dream telephoning a lawyer to explain the previous four incoming calls had just dropped out I felt as though Denise McBurnie was playing a cat and mouse type game with my mind. It is clear from the following pages 36 to 39 Senate - Parliament of Australia that Freehill's had us COT Cases at their mercy. Worse, however, the day before the Senate committee uncovered this COT Case Strategy,

Absent Justice - Senate

Stop the COT Cases at all cost

The Senate was also told under oath, on 24 June 1997 see:- pages 36 to 39 Senate - Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White - "Can you tell me who, at the induction briefing, said 'stopped at all costs"

Mr White responded by saying - Mr Peter Gamble, Peter Riddle. (See pages 36 to 39 Senate - Parliament of Australia)

Also in the above Senate Hansard on 24 June 1997: (refer to page 76 and 77 Senate - Parliament of Australia Senator Kim Carr states to Telstra’s main arbitration defence Counsel (also a TIO Council Member) Re: Alan Smith:

Senator CARR – “In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him”. …

Senator SHACHT – “It does seem odd if someone is collecting files. … It seems that someone thinks that is a useful thing to keep in a file that maybe at some stage can be used against him”.

Senator CARR – “Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?” (My emphasis)

The most alarming situation regarding the intelligence networks that Telstra has established in Australia is who within the Telstra Corporation has the correct expertise i.e. government clearance to be able to impartially filter the raw information collected before that information is catalogued for future use? More importantly, when Telstra was fully privatised, which organisation in Australia was given the charter to archive this very sensitive material?

PLEASE NOTE: At the time of my altercation referred to in the above 24 June 1997 Hansard my bankers had already lost patience and had sent the Sheriff to make sure I stayed on my knees. No punches were thrown by me during this altercation with the Sheriff who was about to remove catering equipment from my property, which I needed to keep trading. I actually placed a judo hold ‘Full Nelson’ on this man and walked him out of my office. All charges were dropped by the Magistrates Court on appeal when it became obvious there were two sides to this story.

.The long-term effect of these unethical attacks on the well-being of the COT Cases, i.e., that two have died since the third has dementia. In November 2017, I suffered a heart attack and double bye-pass (living with a pacemaker). Finally, the terrible treatment we COT Cases have endured has taken its toll. I no longer laugh from my belly or tell my favourite seaman's jokes. I survive only for my partner's sake and the need to say to this story.

In January 2018 my partner, Cathy, was with me for my first appointment with our local doctor after I had survived this heart attack and double by-pass surgery. Although the doctor was very sympathetic to my situation (and he knows my COT story) he couldn’t help but ask: “Why am I not surprised?”

The fabricated BCI report (see Telstra’s Falsified BCI Report and BCI Telstra’s M.D.C Exhibits 1 to 46 is most relevant because it was provided by Telstra's lawyers to Ian Joblin a forensic psychologist who was assigned by Freehill Hollingdale & Page (Telstra's lawyers) to assess my mental state during my arbitration. it is clearly linked to statements made in the following page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page.

What I did not know, when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults is that this COT Case Strategy was a set up by Telstra and their lawyers to hide all proof that I truly did have ongoing telephone problems affecting the viability of my business.

This continual writing up of individual telephone faults, to these lawyers Freehill Hollingdale & Page, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this fault evidence, I was providing it to Telstra believing this would assist them in locating the problems my business was experiencing.

If this wasn’t soul-destroying enough, imagine learning that lawyer, with who you were being forced to register your phone complaints, devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C). instructing their client Telstra (naming me and my business) on how Telstra could conceal this same type of technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. (see also page 5169 SENATE official Hansard – Parliament of Australia.

These were four of the same names targeted by Denise McBurnie and Freehill Hollingdale & Page in their COT Cases strategy, which had to be stopped from receiving their requested documents under FOI (see Prologue Evidence File 1-A to 1-C)

The fact that the Denise McBurnie - COT Case Strategy was exposed during a combined Senate investigation and the government still denied me compensation or did not order Telstra to supply me my previously withheld documents as they did for the other five litmus tests cases shows how corrupt the Australian government is.

In my case, Telstra had previously refused to address the many phone problems that were affecting the capacity of my businesses, telling them 'No fault found,' when documents on this website show they were found to have existed as the following government communications regularors own AUSTEL’s Adverse Findings shows. Page 5169 in this SENATE official Hansard – Parliament of Australia shows Telstra adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page.

Absent Justice - Further Insult to Injustice

Unsigned Witness Statement

When I first received a copy of this legal advice (see Prologue Evidence File 1-A to 1-C) years after the completion of my arbitration it took me back to my arbitration and the 12 September 1994, when I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of my arbitration claims (see the above Denise McBurnie - COT Case Strategy).

I found the process of being interviewed by a forensic psychologist, in the saloon bar of the local hotel, shockingly uncomfortable and embarrassing, especially when he kept spreading out different cards on the table as part of this clinical, forensic testing process. Was this his idea to unstabilize me during my arbitration or the company that had hired him? However, when this legal firm, which the government assured us would not be used in our arbitrations (see point 40 Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by this legal firm's lawyer Maurice Wayne Condon, It bore no signature of the psychologist.

Did Maurice Wayne Condon remove or alter any reference to what Ian Joblin had originally written?

On 21 March 1997, twenty-two months after the conclusion of my arbitration, John Pinnock, (the second appointed administrator to my arbitration), wrote to Telstra's Ted Benjamin (see File 596 AS-CAV Exhibits 589 to 647) asking:

1...any explanation for the apparent discrepancy in the attestation of the witness statement of Ian Joblin .

2...were there any changes made to the Joblin statement originally sent to Dr Hughes compared to the signed statement?"

I have never seen a copy of the advice that John Pinnock was officially entitled to receive from Telstra regarding this unsigned arbitration witness statement.

The reason I was asking the TIO to why Ian Joblin's signature was not on the first of Mr Joblin's supplied witness statement is because the first witness statement had paragraphs that did not correspond with the previous statement above it. It appeard as those in two area's of the witness statement Mr Joblin had left out a paragraph of one or two paragraps.

The ending in those to paragraphs which appeared to have stopped half way through the sentence (the folowing words did not flow) back into the previous statement made.

It is also important to highlight the Freehiil's statement noting:

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.

It goes on to say:

'Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

I reterate. the government promised us that Freehill Hollingdale & Page would not be used in our arbitrations. On 5th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Ian Campbell, Managing Director, Commercial (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from Freehill Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Holingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role."

It is most paramount that I discuss here in my story because if the reader is trying to come to grips as to why my issues have not been taken up by a government legal type agency this question can be answered by raising for very important issues raised on page 5169 at point 29, 30, and 31 SENATE official Hansard – Parliament of Australia which note:

29. Whether Telstra was active behind-the-scenes in preventing a proper investigation by the police is not known. What is known is that, at the time, Telstra had representatives of two law firms on its Board—Mr Peter Redlich, a Senior Partner in Holding Redlich, who had been appointed for 5 years from 2 December 1991 and Ms Elizabeth Nosworthy, a partner in Freehill Hollingdale & Page who had also been appointed for 5 years from 2 December 1991.

One of the notes to and forming part of Telstra’s financial statements for the 1993- 94 financial year, indicates that during the year the two law firms supplied legal advice to Telstra totalling $2.7 million, an increase of almost 100 per cent over the previous year. Part of the advice from Freehill Hollingdale & Page was a strategy for "managing" the "Casualties of Telecom" (COT) cases.

30. The Freehill Hollingdale & Page strategy was set out in an issues paper of 11 pages, under cover of a letter dated 10 September 1993 to a Telstra Corporate Solicitor, Mr Ian Row from FH&P lawyer, Ms Denise McBurnie. The letter, headed "COT case strategy" and marked "Confidential," stated: "As requested I now attach the issues paper which we have prepared in relation to Telecom’s management of ‘COT’ cases and customer complaints of that kind. The paper has been prepared by us together with input from Duesburys, drawing on our experience with a number of ‘COT’ cases. . . ."

31. The lawyer’s strategy was set out under four heads: "Profile of a ‘COT’ case" (based on the particulars of four businesses and their principals, named in the paper); "Problems and difficulties with ‘COT’ cases"; "Recommendations for the management of ‘COT’ cases; and "Referral of ‘COT’ cases to independent advisors and experts". The strategy was in essence that no-one should make any admissions and, lawyers should be involved in any dispute that may arise, from beginning to end. "There are numerous advantages to involving independent legal advisers and other experts at an early stage of a claim," wrote Ms McBride . Eleven purported advantages were listed.

Absent Justice - My Story What sort of a chance do you think I would have if I lodged any sort of a claim with any level of government in Australia? Do you think I could expect a fair hearing and an unbiased judgement from the Labor Party, or any other Australian organisation with any level of power in relation to what Freehill Hollingdale & Page did back when Ms Elizabeth Nosworthy and Mr Peter Redlich AO were both on the board of Telstra and my business was one of the four that were deliberately singled out by Freehill's to be stopped from getting the documents we needed to support our claims, no matter what the cost might be to achieve that?

Back then, Mr Redlich was, in most people's eyes, one of the finest lawyers that Australia had ever had. A stalwart within the Labor Party, a one-time friend of two Australian Prime Ministers (Gough Whitlam and Bob Hawke) and a long-time friend of Mark Dreyfus, Australia's current Attorney General. Who would be the slightest bit interested in listening to my perspective in relation to someone so highly qualified and with such important friends? Would my situation have even the tiniest chance of being heard in relation to the COT strategy designed by Freehill Hollingdale & Page? After all, in comparison to these so-called highly qualified, revered Aussie citizens, I am just a one-time Ships’ Cook who purchased a holiday camp with a very unreliable phone service although, remember, I am also a legitimate Australian citizen.

It is important to note that during the first week of January 1994, the COTs advised Warwick Smith, the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, Robin Davey, had also assured the COTs that Freehill’s would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Greg Newbold to various Telstra executives (AS 928) notes:

"Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehills."

Later, between January and March 1994, when the COTs again spoke to Warwick Smith concerned that Telstra had now appointed Freehills as their FTAP defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though Alan also advised the TIO, in March 1994, that he was still having to register his phone complaints through Freehills and had still not been provided with any of the technical data to support Freehill’s assertions that there was nothing wrong with his telephone/fax service. This was a grave conflict of interest situation.

During and after my arbitration he raised his concerns that the arbitrator had not addressed Freehill’s submission of Telstra witness statements that had only been signed by Freehills and not by those who were actually making the statements. Nothing was transparently done to assist me in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

My appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between Freehills, Telstra and I was ever provided to me as it should have been according to the rules of discovery. In fact, my lawyer suggested that perhaps Telstra had originally appointed Freehills to be my designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that my ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during his arbitration.

Telstra’s continued use of Freehills throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, Dr Hughes was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.

19th October 1993: This document from Denise McBurnie (Freehill's) to Telstra's Don Pinel titled Legal Professional Privilege In Confidence FOI folio A06796: includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra were already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that Telstra had directed me to register my 'ongoing' telephone faults, in writing, to Denise McBurnie of Freehills in order to have those issues addressed. I found this not just time consuming, but also very frustrating, because by the time he received a response to one complaint he already had further complaints to register. It wasn’t until I entered the arbitration process that it appeared as though Telstra were using Freehills’ Legal Professional Privilege strategy to hide numerous important technical documents from the claimants, including the very same 008/1800 fault complaints that I had registered through Freehills, according to Telstra’s directions.

29th October 1993: this Telstra FOI document folio K01489 Exhibit (AS 767-A) notes

"During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read, at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in my case at least, that this interception continued for seven years after his arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the COO), and those documents could well have included information that the claimants might not have wanted disclosed to the defendants at the time

Was the engineer pressured to stay quiet during my arbitration? I don't know. Certainly, not all Telstra engineers or technicians treated COT complaints in good faith. Another Telstra technician, who experienced major problems during his official fax testing process on 29 October 1993, nevertheless advised the arbitrator that I had no problems with that service, even though the Telstra document that discusses these faults notes:

In a similar incident, an FOI document regarding a complaint I lodged about my own phone service bears a hand-written note which states: 'No need to investigate, spoke with Bruce, he said not to investigate also.'

Where was this attitude coming from? If from higher management, it seems an odd way to do business: exacerbating our problems so that we would only complain more.

In the first five months of 1993, I received another eleven written complaints, including letters from the Children's Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business, unabated, from April 1988 to mid-1993.

By now, due to COT's pressure in Canberra, a number of politicians had become interested in our situation. The question was, would these politicians actually take any action on our behalf, or would they protect the 'milking cow' of the Telstra corporation?

In June 1993, the Shadow Minister for Communications, the Hon. Senator Richard Alston was showing an interest. He and Senator Ron Boswell of the National Party both pushed for a Senate Inquiry into our claims and, an ex-Telstra employee recently told me they were very close to pulling it off. If this Senate Inquiry had got off the ground, heads in Telstra might have rolled, but this didn't happen, and those same 'heads' continue to control Telstra to this day.

Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, he has continued to offer his support. David Hawker MP, my local parliamentary member, was another who saw his 'duty of care to his constituents and so answered our call for help. He took my claims seriously — indeed, he took the problem of poor phone service in his electorate seriously and was appalled at its extent. Mr Hawker sent me letters of support, put relevant people in touch with me, organised assistance for me, and has continued to go into battle on COT's behalf for ten years now.

Non-connecting calls

While the politicians tried to launch a Senate Enquiry, COT continued to lobby Austel for assistance. Yet another telephone issue was affecting my business. In February 1993, I installed an 1800 free call number to encourage telephone business and experienced problems right from the start. Many calls to this number were not connecting; the caller heard only silence on the line and typically hung up. The business was potentially losing a client, but adding insult to injury, I was charged for these non-connecting calls. Even worse, in many instances, the caller heard a recorded announcement from Telstra to the effect that the number wasn't connected. I first knew this problem was occurring through people reporting their difficulties trying to reach me. After this, I checked my bills carefully.

According to Telstra's policy, customers are charged only for calls that are answered. Unanswered calls are not charged and include:

… calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which 'ring out' or are terminated before or during ringing.

Between February and June 1993, I provided Austel with evidence of erroneous charging on unanswered calls on my 1800 service (in fact, it went on for at least another three years after that). John MacMahon, General Manager of Consumer Affairs at Austel, wanted a record of all non-connected calls and RVAs that were being charged to my 1800 account. In order to provide that, I needed the data from my local exchange.

Both Austel and the Commonwealth Ombudsman's Office were aware that I made repeated requests of Telstra, under the rules of FOI, to provide me with the relevant data. Yet, despite the involvement of these institutions, Telstra held out on me. In the end, it was more than a decade later that I received any of the relevant information, and that was through Austel. And, of course, it was too late by then. The statute of limitations on the matter had long expired.

I did not understand then, nor do I understand why Austel, as the government regulator of the telecommunications industry, could not demand that data from Telstra.

From June 1993, I had proof that Telstra knew the faulty billing in the 1800 system was a network problem from its inception.

The Briefcase

Absent Justice - My Story - The Briefcase Affair

Ericsson AXE faulty telephone exchange equipment (1)

I should have known better. It was just another case of 'No fault found.' We spent some considerable time 'dancing around' a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office, I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.

Aladdin

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. However, what there was in the briefcase was a file titled 'SMITH, CAPE BRIDGEWATER'. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang alarm bells was a document that revealed Telstra knew that the RVA fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks that was the basis of their settlement payout. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA' service disconnected' message with the 'latest report' dated 22/7/92 from Station Pier in Melbourne and a 'similar fault reported' on 17/03/92. The final sentence reads: 'Network investigation should have been brought in as fault has gone on for 8 months.'

I copied this and some other documents from the file on my fax machine and faxed copies to Graham Schorer. The next morning I telephoned the local Telstra office, and someone came out and picked the briefcase up.

The information in this document dated 24 July 1992 was proof that senior Telstra management had deceived and misled me during previous negotiations. It showed that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near 'up to standard'.

It is noted that Telstra's area general manager was fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information. This information had influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania, was also aware of this deception.

The use of misleading and deceptive conduct in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra's unethical behaviour.

Chapter 5 Manipulating the Regulator

Absent Justice - Negligent Action

Previously Withheld Documents

I took this new information to Austel and provided them several documents that had previously been withheld from me during my 11 December 1992 settlement which had been in the brifcase. On 9 June 1993, Austel's John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement and the content of the briefcase documents:

Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In Summary, these allegations, if true, would suggest that in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation, which was apparently inadvertently left at Mr Smith's premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL's consideration of any action it should take.

As to Mr Smith's claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith's claims of continuing service difficulties, I will be seeking to determine with you a mechanism that will allow an objective measurement of any such difficulties to be made.

I can only presume that Telstra did not comply with the request 'to immediately provide AUSTEL with a copy of all the available documentation which was apparently inadvertently left at Mr Smith's premises,' on 3 August 1993. Austel's General Manager, Consumer Affairs, wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to Austel.

I sent off a number of Statutory Declarations to Austel explaining what I had seen in the briefcase.Telstra had returned and picked up the briefcase.

One-third of documents which I managed to copy was enough information to convince AUSTEL that Ericsson and Telstra were fully aware the AXE Ericsson lock-up faults was a problem worldwide affecting 15 to 50 percent of all calles generate through this AXE exchange equipment. It was locking up flaws affected the billing software.

Thousands upon thousands of Telstra customers Australia wide had been wrongly billed since the instalation of this Ericsson AXE equipment which in my case, had been installed in August 1991, with the problems still apparent in 2002. Tther countries around the world were removing or had removed it from their exchanges (see File 10-B Evidence File No/10-A to 10-f ), and Australia was still denying to the arbitrator there was ever a problem with that equipment. Lies told by Telstra so as to minmize their liability to the COT Cases. (See Files 6 to 9 AXE Evidence File 1 to 9)

Was this the real reason why the Australian government allowed Ericsson to purchase Lane during the government endorsed COT arbitration while the arbitrations were still in progress?

When the COT arbitration documents submitted into arbitration proved that this Ericsson AXE lock-up call loss rate was between from 15% to 50% as File 10-B Evidence File No/10-A to 10-f so clearly shows. AUSTEL then instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL's Chairman Robin Davey received a letter from Telstra's Group General Manager (who was also Telstra's main arbitration defence liaison officer), suggesting he alter that finding for 120,000 COT-type complaints to show a hundred. If fact when the public AUSTEL COT Cases report was launched on 13 April 1994, it shown AUSTEL located up-wards of 50 or more COT-type complaints being experienced around Australia.

Was this the major problem Julian Assange wanted to share with the COT Cases? He said corruption was significant. How bigger could this have been had it been exposed during the COT arbitrations?

In my case, none of the relevant arbitration claims raised against Ericsson, whose official arbitration records numbered A56132, were investigated, including my Telstra's Falsified SVT Report. Why did Lane ignore this evidence against Ericsson?

Even worse was when my arbitration claim documents were returned to me after the conclusion of the arbitration NONE of my Ericsson technical data was amongst the returned material.

I believe the Australian government should answer the following questions: How long was Lane Telecommunications Pty Ltd in contact with Ericsson, the major supplier of telecommunication equipment to Telstra before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process?

Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (see Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued).

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers if they were to visit this website absentjustice.com where you can see, yourself, that my claims against Telstra and Ericsson are valid (see Bribery and Corruption - Part 2).

Therefore, it is important to highlight the Ericsson here the bribery and corruption issues the US Department of Justice raised against Ericsson as discussed above in the Australian media reports on 19 December 2019

On 27 August 1993, Telstra's Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:

Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra's property. They, therefore, are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.

How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.

Flogging a dead horse

By the middle of 1993, people were becoming interested in what they heard about our battle. A number of articles had appeared in my local newspaper, and interstate gossip about the COT group was growing. In June, Julian Cress from Channel Nine's 'Sixty Minutes' faxed me:

Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic, considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11 am. On the 008 number I heard a recorded message advising me that 008 was not available from my phone and your direct line was constantly engaged.

Pretty ironic, all right!

A special feature in the Melbourne Age gave my new 'Country Get-A-Ways' program a great write-up. It was marketing weekend holidays for over-40s singles in Victoria and South Australia: an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia with a Saturday morning shopping tour to Mt Gambier. I began to feel things were looking up for the Camp.

It was too much to hope for that my telephone saga was coming to an end. A fax arrived on the 26 October 1993, from Cathine, a relative of the Age journalist who wrote the feature:

Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.

Cathine had been ringing on my 1800 free-call line. I had been in my office and there had been no calls at all between 12.30 and 2.45 that day. What was going on? (Telstra's data for that day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed. That day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed.

I stepped up my marketing of the Camp and the singles weekends, with personal visits to social clubs around the Melbourne metropolitan area and in Ballarat and Warrnambool. I followed with ads in local newspapers in metropolitan areas around Melbourne and in many of the large regional centres around Victoria and South Australia. I also placed ads for the Get-Away holidays in the 1993 White Pages — or rather, I tried to: the entries never made it into the telephone books. I complained of this to the TIO (the Telecommunications Industry Ombudsman), who attempted to extract from Telstra an explanation for my advertisements being left out of 18 major phone directories.

As the Deputy TIO said in his letter to me of 29/3/96, he believed his office would simply 'be flogging a dead horse trying to extract more' from Telstra on this matter. (In fact, the TIO is an industry body supervised by a board, the members of which are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra.)

Between May and October of 1993, in response to my request for feedback, I received many letters from schools, clubs and singles clubs, writing of the difficulties they had experienced trying to contact the Camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their Resource Guide, which I had advertised, had been directly mailed to schools and given away. Mr MacDowall had said the other advertisers with ads similar to mine had experienced an increase in inquiries and bookings after distributing these books. So it seemed evident to him that the 'malfunction of your phone system effectively deprived you of similar gains in business.' He also noted that he had himself received complaints from people asking why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year's family camp, over a six month period during 1991/1992.

In August 1993 Rita Espinoza from the Chilean Social Club wrote:

I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on 10 August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have made arrangements with another camp.

A testing situation

Late in 1993, a Mrs Cullen from Daylesford Community House informed me that she had tried unsuccessfully to phone me on 17 August 1993 at 5.17, 5.18, 5.19 and 5.20 pm, each time reaching a deadline. She had reported the fault to Telstra's Fault Centre in Bendigo on 1100, speaking to an operator who identified herself as Tina. Tina then rang my 1800 number, and she couldn't get through either. Telstra's hand-written memo, dated 17 August 1993, records the times Mrs Cullen tried to get through to my phone and reports Tina's failed attempt to contact me.

A copy of my itemised 1800 account shows that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel and, soon afterwards, Telstra at last arranged for tests on my line. These were to be carried out from a number of different locations around Victoria and New South Wales. Telstra notified Austel that some 100 test calls would take place on 18 August 1993 to my 1800 free-call service.

First thing that morning I answered two calls from Telstra Commercial, one lasting six minutes and another lasting eleven minutes, as they set up in readiness for the test calls expected that day. Over the rest of that day, there were another eight, perhaps nine calls from Telstra, which I answered. My 1800 phone account arrived, showing more than 60 calls charged to my service some days later. I queried this with Telstra, asking first how I could be charged for so many calls which did not ring, and next, why I should be paying for test calls anyway. In hindsight, I should have asked how more than 60 calls could have been answered in just 54 minutes when the statement shows that some of these calls came through at the rate of as many as three a minute.

Telstra wrote to Austel's John MacMahon on 8 November 1993, informing him that I had acknowledged answering a 'large number of calls' and that all the evidence indicated that 'someone at the premises answered the calls.' Austel asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, but Telstra didn't respond.

Then on 28 January 1994, I received a letter from Telstra's solicitors in which they referred to 'malicious call trace equipment' Telstra had placed — without my knowledge or consent — on my service between 26 May and 19 August 1993. This was the first I'd heard of it. This device, they explained, apparently caused a 90-second lock-up on my line after a call was answered, meaning that no further call could come into my phone for 90 seconds after I hung up.

This information put another complexity on the matter of those four calls from Mrs Cullen I was charged for in the space of a single 28 seconds and the 100 test calls from Telstra. Even supposing I could answer the phone at such a fast rate, the malicious call tracing equipment, apparently attached to my line at that time, was imposing its 90-second delay between calls, making the majority of these calls impossible. Telstra management, of course, had nothing to say about this.

What was going on? As far as I could tell, most of those 100 test calls simply weren't made; indeed, they couldn't have been made.

Late in 1994, I received two FOI documents concerning these calls. K03433 and K03434 showed 44 calls, numbered between 8 and 63, to the Cape Bridgewater exchange, nine of which had tick or arrow marks beside them. More than once, I asked Telstra what the marks represent but received no response. However, I presume that a technician made these marks against the calls I actually received and answered. A note on K03434 read:

Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CBWEX (Cape Bridgewater Exchange). I gave up tests.

The technicians themselves gave up on their testing procedure! The second series of tests conducted a year later in March 1994 fared little better. Telstra's fault data notes that only 50 out of 100 test calls were successfully connected. This information was of no use to me at the time, however, as it was withheld from me until September 1997. All I was to hear in 1994 was the old refrain: 'No fault found.'

Only one official document drew attention to the incapacity of Telstra's testing regime, and this was the Austel Draft Report regarding the COT cases, dated 3 March 1994, which concluded:

Cape Bridgewater Holiday Camp has a history of services difficulties dating back to 1988. Although most of the documentation dates from 1991, it is apparent that the Camp has had ongoing service difficulties for the past six years, which has impacted on its business operations, causing losses and erosion of the customer base.

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.

I believe you are taking the most appropriate course of action

I have never received a written response from BCI, but the Canadian government ministers’ office wrote back on 7 July 1995 noting:

"In view of the facts of this situation, as I understand them, I believe you are taking the most appropriate course of action in contacting BCI directly with respect to the alleged errors in their test report., should you feel that they could assist you in your case."

It is also clear from Exhibit 8 dated 11 August 1995 (see BCI Telstra’s M.D.C Exhibits 1 to 46 a letter from BCI to Telstra;s Steve Black and Exhibit 36 on (see BCI Telstra’s M.D.C Exhibits 1 to 46 a further letter from BCI to Telstra's John Armstrong that neither letter is on a BCI letter head, as are Exhibits 1 to 7, from BCI to Telstra (see BCI Telstra’s M.D.C Exhibits 1 to 46.

Both Exhibits 8 and 36 were provided by Telstra to the Senate Committee in October 1997, to support that BCI Cape Bridgewater tests were genuine when the evidence on absentjustice.com and Telstra's Falsified BCI Report confirms it is not.

Telstra has been relying on government ministers to ignore this fraud which the government has done for the past two decades or more.

As far as Telstra's Simone Semmens stating on Nationwide TV (see above) that the Bell Canada International Inc (BCI) test conducted at the COT Cases telephone exchanges that serviced their business proved there were no systemic billing problems in Telstra's network does not coincide with the evidence attached to my website absentjustice.com or the public statement made by Frank Blount. The latter was Telstra's CEO during my arbitration. In 2000 in his co-produced manuscript.

On pages 132 and 133 in publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) Frank Blounts reveaks Telstra did have a systemic 1800 billing problem affecting Australian consumers accross Australia. These were the same 1800 billing problems the arbitrator Dr Gordon Hughes would not allow his two technical consultants DMR (Canada) and Lane (Australia) to investigate (see Chapter 1 - The collusion continues).

Had Dr Hughes given DMR & Lane the extra weeks they stated in their 30 April 1995 report was needed to investigate these ongoing 1800 faults (see Chapter 1 - The collusion continues) DMR & Lane would have uncovered what Frank Blount had uncovered. For Telstra to have mislead and deceivied  the arbitrator concerning these 1800 faults is one thing, but to mislead and devieve their 1800 customers is another issue in deed.

The following link Evidence - C A V Part 1, 2 and 3 -Chapter 4 - Fast Track Arbitration Procedure confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he co-published a manuscript in 2. entitled, Managing in Australia. On pages 132 and 133, when discussing these 1800 network faults the author/editor writes exposes :

“Blount was shocked, but his anxiety level continued to rise when he discovered this wasn’t an isolated problem.

The picture that emerged made it crystal clear that performance was sub-standard.” (See File 122-i - CAV Exhibit 92 to 127)

Frank Blount's Managing Australia https://www.qbd.com.au › managing-in-australia › can still be purchased online.

The fact that Telstra allowed Simone Semmens to state on Nationwide TV that the Bell Canada International Inc (BCI) test proved there were no systemic billing problems in Telstra's network during the four years of the COT arbitrations is bad enough, but to have said it when there were other legal processes being administered where the billing was an issue is deception of the worse possible kind, especially after Senator Schacht, advised Telstra's Mr Benjamin of his concerns regarding Simone Semmen's statement inferring Telstra's network was of world statdard when both Telstra and BCI knew different.

Telstra’s Mr Benjamin's statement to Senator Schacht — "...I am not aware of that particular statement by Simone Semmens, but I think that would be a reasonable conclusion from the Bell Canada report,'' is also misleading and deceptive because I had already provided Mr Bejamin (see AS-CAV Exhibit 181 to 233 - AS-CAV 196, AS-CAV 188,  AS-CAV 189 and AS-CAV 190-A), with the proof the Cape Bridgewater BCI tests were fundamentally flawed.

Senator Schacht' s further statement — since then of course—not in conversations but elsewhere— we now have major litigation running into hundreds of millions of dollars between various service providers and so on which are complaints about the billing system. Does that indicate that she may have been partly wrong?

Wrong or not, we know that several of those business owners who made those complaints lost their court actions and their businesses.

FIVE YEARS ON

Telstra in contempt of the Senate

On 23 March 1999, almost five years after most of the arbitrations had been concluded, the Australian Financial Review (newspaper) reported on the conclusion of the Senate estimates committee hearing into why the COT Cases were forced into a government-endorsed arbitration without the necessary documents they needed to fully support their claims i.e.

“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They have defied the Senate working party. Their conduct is to act as a law unto themselves.”

I doubt there are many countries in the Western world governed by the rule of law, as Australia purports to be, that would allow a group of small-business operators to be forced to proceed with a government-endorsed arbitration while allowing the defence (the government which owned the corporation) to conceal the necessary documents these civilians needed to support their claims. Three of those previously withheld documents confirm Telstra was fully aware that the Cape Bridgewater Bell Canada Internations Inc (BCI) tests could not possibly have taken place according to the official BCI report Telstra used as arbitration defence documents.

On my behalf, Mr Schorer (COT. Spokesperson) raised the Cape Bridgewater BCI deficient tests with Senators Ron Boswell and Chris Schacht. Pages 108-9 of Senate Hansard records (refer to Scrooge - exhibit 35) confirm Telstra deflected the issue of impracticable tests by stating my claim – that the report was fabricated – was incorrect. The only problem with the report was an incorrect date for one of the tests. The Senate then put Telstra on notice to provide evidence of that error.

If the 12 January 1998 letter to Sue Laver, with the false BCI information attached is not enough evidence to convince the Australian Government that Telstra cannot continue pretending. They know nothing about the falsified Cape Bridgewater BCI tests, Telstra, and the Senate estimates committee chair was again notified, on 14 April 1998, that the Cape Bridgewater BCI tests were impracticable. When is Telstra going to come forward and advise the Telstra board that my claims are right and that indeed it was unlawful to use the Cape Bridgewater BCI tests as arbitration defence documents as well as grossly unethical to have provided the Senate with this known false information when answering questions on notice?

On pages 23-8 of this letter, and using the Cape Bridgewater statistics material, Graham provided clear evidence to Sue Laver and the chair of the Senate legislation committee that the information Telstra provided to questions raised by the Senate on notice, in September and October 1997, was false (see Scrooge - exhibit 62-Part One and exhibit 62-Part-Two). Telstra was in contempt of the Senate. No one yet within Telstra has been brought to account for supplying false Cape Bridgewater BCI results to the Senate. Had Telstra not supplied this false information to the Senate, the Senate would have addressed all the BCI matters I now raise on absentjustice.com in 2021.

Telstra’s Falsified BCI Report’  is all the evidence necessary to show that arbitration lawyers provided false information to Telstra’s arbitration witness, namely the clinical psychologist, during my government-endorsed arbitration, and two years later, Telstra supplied that same BCI false information on notice to the Senate.

It is ironic that two Telstra technicians, in two separate witness statements dated 8 and 12 December 1994, discuss the testing equipment used by Telstra in overall maintenance and state that the nearest telephone exchange, to Portland and Cape Bridgewater, that could facilitate the TEKELEC CCS7 equipment was in Warrnambool 110 kilometres from Portland/Cape Bridgewater, where BCI alleged they carried out their PORTLAND / Cape Bridgewater tests via the Ericsson AXE exchanges trunked through the TEKELEC CCS7 equipment.

I have shown throughout this webpage absentjustice.com, including in the Brief Ericsson Introduction⟶ that in several cases such as Cape Bridgewater (where I tried to run my telephone dependent business), Ericsson telephone equipment was known to affect the telephone equipment that serviced my business. And yet Telstra was still prepared the lie and cheat in the arbitration defence of my claim as well as during a Senate Estimates investigation into my Ericsson AXE BCI claims.

On 12 January 1998, during the Senate estimates committee investigations into COT FOI issues, Graham Schorer provided Sue Laver (now in 2021) Telstra’s corporate secretary with several documents. On page 12 of his letter, Graham states:

“Enclosed are the 168 listings extracted from Telstra’s Directory of Network Products and Network Operations, plus CoT’s written explanation, which alleges to prove that parts of the November 1993 Bell Canada International The report is fabricated or falsified.”

Had the Senate been advised by Sue Laver there was merit in my complaints concerning the flawed BCI testing, my matters raised on absentjustice.com could have been resolved two decades ago.

Please click on the following link Telstra’s Falsified BCI Report and form your own opinion as to the authenticity of the BCI report which was used by Telstra as an arbitration defence document?

The evidence which supports the report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference for the Senate working party for their investigation into the COT arbitration FOI issues which Sue Laver,. Telstra's current Corporate Secretary in 2001, was heavily involved in these Senate hearings on behalf of Telstra. This document shows the two lists of unresolved COT cases with FOI issues to be investigated. My name appears on the Schedule B list (see Arbitrator File No 67). Telstra, by still refusing to supply these 16 COT cases with promised discovery documents, first requested four years earlier, was acting outside of the rule of law and yet, regardless of Telstra breaking the law, these 16 claimants received no help from the police, arbitrator or government bureaucrats and were denied access to their documents, as absentjustice.com shows.

Exhibit 20-A, a letter dated 9 December 1993 from Cliff Mathieson of AUSTEL to Telstra’s Manager of Business Commercial, states on page 3, "...In summary, having regard to the above, I am of the opinion that the BCI report should not be made available to the assessor(s) nominated for the COT Cases without a copy of this letter being attached to it."

Had this letter and the many other letters in BCI Telstra’s M.D.C Exhibits 1 to 46 been provided to the senate as part of Telstra's response to questions placed on notice concerning my claims the BCI Cape Bridgewater tests were impracticable the Senate might well have demanded more information regarding my claims. This BCI 9 December 1993 letter is also discussed in the introduction to My story-warts and all as follows:

After my arbitration was concluded, I alerted Mr Tuckwell that Telstra had used these known corrupt Bell Canada International Inc (BCI) Cape Bridgewater tests to support their arbitration defence my claims without AUSTEL's letter being supplied to the arbitrator (see Telstra's Falsified BCI Report).

“The tests to which you refer were neither arranged nor carried out by AUSTEL. Questions relating to the conduct of the test should be referred to those who carried them out or claim to have carried them out.” File 186 - AS-CAV Exhibit 181 to 233

If Neil Tuckwell (on behalf of the government communications regulator) had demanded answers back in 1995 as to why Telstra used known falsified BCI tests, this falsifying of arbitration defence documents would have been dealt with in 1995 instead of still actively being covered up in 2022.

I reiterate, by clicking onto the following link Telstra’s Falsified BCI Report you can form your own opinion as to the authenticity of the BCI report and/or my version that clearly shows the Cape Bridgewater test was impracticable.

The evidence (46 exhibits) which support my report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

COT is partly vindicated by audit

For all its faults, Austel pressured Telstra to commission an audit of its fault handling procedures. Telstra engaged the international audit company of Coopers & Lybrand to report on its dealings with complaints like those raised by COT members. Coopers & Lybrand’s report conveys serious concern at the evidence we presented of Telstra’s unethical management of our complaints.

The Coopers report did not go down well with Telstra. The Group Managing Director of Telstra wrote to the Commercial Manager Refer to Chapter 6 Bad Bureaucrats:

… it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, that their future in relation to Telstra may be irreparably damaged.

These are strong words from the most senior manager below the CEO of a corporation that had a monopoly on the telecommunications industry in Australia. Austel tabled the Coopers & Lybrand report in the Senate, but with some significant changes to what had appeared in the draft report. Regardless of those changes, Coopers were still damning in their assessment to what had happened to the COT Cases.

The following points are taken directly from the Coopers & Lybrand report:

2.20     Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22     Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2)        Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5       We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.

We COT four at last felt vindicated; we were no longer alone in claiming that Telstra really did have a case to answer.

A Fast Track (Commercial Assessment) Settlement Process

To summarise. Senators Alston and Boswell had taken up COT’s cases with Telstra and Austel in August 1993, saying that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to cooperate, and Austel was authorised to make an official investigation into our claims.

As a result of their investigation, Austel concluded that there were indeed problems in the Telstra network and that the COT four had been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing, had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were all in such difficult financial positions, Austel’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to arrive at a value for our claims. These claims had already been found generally to be valid in Austel’s Report, The COT Cases: Austel’s Findings and Recommendations, April 1994 (public report) and it only remained for an assessor to determine an appropriate settlement based on the detailed quantification of our losses.

This ‘Fast Track Settlement Process’ was to be run on strictly non-legal lines. This meant we were not to be burdened with providing proof to support all of our assumptions, and we would be given the benefit of the doubt in quantifying our losses. This was the process Austel specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible.

Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last we began to feel we were getting somewhere. Robin Davey also assured us that any costs we might incur in preparing our claims would be considered as part of our losses, so long as our claims were proved. However, he would not confirm this assurance in writing because, he explained, it could set an unwanted precedent.

Telstra was anxious about setting precedents. On 18 November 1993, Telstra’s Corporate Secretary had written to Mr Davey pointing out that:

… only the COT four are to be commercially assessed by an assessor.

For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.

In effect, we four COT members were given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time Austel was dealing with another dozen or so COT cases. We four were being ‘rewarded’ for the efforts we had made over such a long period of suffering business losses. On the other hand, we were also being pressured by this rush — we would lose the option for a commercial assessment if we didn’t sign by 23 November, a mere five days away. The problem was, we were reliant on the supporting documents we needed for our claims. For these we were dependent on Telstra’s good will, and their track record gave us no confidence in that. We were also concerned about the lack of written assurance regarding compensation for preparational and other expenses.

On 22 November we turned for advice to Senator Alston, Shadow Minister for Communications. His secretary, Fiona, sent him an internal memo headed ‘Fast Track Proposal’, in which she conveyed our concerns:

Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.

COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this, COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.

There was no response from Senator Alston.

Graham, Ann, Maureen and I signed the FTSP the following day, hoping we could trust Robin Davey’s verbal assurances that consequential losses would be included and that Telstra would abide by their agreement to provide the necessary documents. I included a letter with the agreement, clearly putting my expectations of the process:

In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.

Despite nagging doubts, we felt a great sense of relief once we had sent off the agreement. The pressure on all four of us had been immense with TV and newspaper interviews as well as our ongoing canvassing of the Senate. And I had never stopped hammering for change in rural telephone services, at least in Victoria.

In December 1993 David Hawker MP, my local federal member, wrote to congratulate me for my ‘persistence to bring about improvements to Telecom’s country services’ and regretted ‘that it was at such a high personal cost.’

This was very affirming, as was a letter from the Hon. David Beddall MP, Minister for Communications in the Labor Government, which said, in part:

Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s, there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra detailing problems with their phones and various billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believe this was a responsible reaction to the letters I was receiving.

Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people and the general public suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:

I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based.

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.

A letter to the Editor of Melbourne’s Herald-Sun, read:

I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.

(Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not help.)

TV stations reported that their phones ran hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and the general public boosted our morale and gave us more energy to keep going as a group. We continued to push to have these matters addressed in the Senate.

AUSTEL’s Adverse Findings, at points 10 to 212 were compiled after the government communications regulator investigated my ongoing telephone problems. Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. This allowed Telstra the chance to conceal the documents AUSTEL had located in Telstra's files before my arbitration began. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration.

Point 115 –

“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”

Point 130 –

“On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.” On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.

Point 153 –

“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”

Spoliation of evidence – Wikipedia

In simple terms, by AUSTEL only providing Telstra with a copy of their AUSTEL’s Adverse Findings in March 1994, not only assisted Telstra during their defence of my 1994/95 arbitration it also assisted Telstra in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.

Muzzling the media

We were getting a good amount of media coverage, even though it appears likely that some journalists were being asked by Telstra to ‘kill’ certain stories.

A memo between executives within Telstra back in July, entitled ‘COT Cases Latest ’, states, in part:

I disagree with raising the issue of the courts. That carried an implied threat not only to COT cases but to all customers that they will end up as lawyer fodder. Certainly that can be a message to give face to face to customers to hold in reserve if the complainants remain vexatious.

We are left to wonder how many Telstra’s customers like the COT Cases, who once they went into arbitration and/or mediation, ended up as lawyer fodder with broken homes and businesses destroyed?

A TV news program was also a target:

Good news re Channel —— News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phrase it was that convinced —— not to proceed. Might have been one of ‘(name deleted) pearls.

The name deleted was Telstra’s Corporate Secretary at the time. I have omitted the identity of the TV station and reporter. We too can only wonder what it was that convinced a respected journalist to drop a story.

It transpired that the same area general manager who deliberately misinformed me during the settlement process in 1992–93 was one of the two Telstra staff appointed to ‘deal with the media/politicians’ regarding COT issues. Would she misinform the media the way she misinformed me, I wondered.

A memo between executives within Telstra back in July1993, entitled ‘Cot Wrap-Up’, states, in part:

I think it should be acknowledged these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy ‘Look at superbly built and maintained network’ stories.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. Prologue Evidence File No 24 to 39

We ‘long-term aggrieved’ are left to wonder just who ‘Clinton’ was and why his mind was considered to be in the gutter.

Another most startling document which I received long after my arbitration Telstra FOI folio 101072 to 10123 titled “In-Service Test Performance for The Telecom Australia Public Switched Telephone Service (Telecom Confidential) notes:

“The performances tabulated below have been formulated to aid dispute investigation and resolution. The information contained herein is for internal Telstra Corporation use only and must not be released to any third party, particularly AUSTEL.” (refer 101072 Arbitrator File No 63)

If AUSTEL had known that this document included the words: “must not be released to any third party, particularly AUSTEL”, perhaps their public servants might not have perjured themselves in defence of Telstra’s arbitration claims that all the Service Verification Testing at my business on 29 September 1994 had met all AUSTEL’s specifications? And I believe those public servants certainly did perjure themselves, not only in their 2 February 1995 letter but again in the third COT cases quarterly report to the communications minister, the Hon Michael Lee MP. Refer to Main Evidence File No/2 and File No 3 which confirms that, at my premises at least, Telstra definitely did not carry out their arbitration Service Verification Testing (SVT) to AUSTEL’s mandatory specifications, at all.

During this story as well as on my website, I have raised the issue of the government communications regulator writing to Telstra before the COT arbitrations began to warn them that the government would be quite concerned if a certain legal firm had any further involvement with the COT settlement/arbitration process. I also raised my concern when the arbitration agreement faxed to the TIO’s office on 10 January 1994 bore the abbreviated name of this very same legal firm, despite the government assuring us this firm would NOT have a continuing role to play.

This FOI document (refer to Arbitrator File No/80), dated in the month of September 1993, was released to me by Telstra under FOI too late for me to use in my arbitration claim may well have persuaded the arbitrator to have allowed me more time to access documents from Telstra. As this document was released to me after my arbitration, one would have to assume it relates to my ongoing telephone problems i.e.

“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager.”

This Legal Professional Privilege document must be related to the threats I received from Telstra that if I did not register my phone complaints with these same lawyers (in writing) then Telstra would not investigate those complaints.

Chapter 5

Sold out

TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.

“Advice from Warwick is:

Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO sees no merit in a Senate Inquiry.

“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.

“Could you please protect this information as confidential.”

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

It is highly likely the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.

Was this secret government party-room information passed on to Telstra by the administrator to our arbitrations have anything to do with the Child Sexual Abuse and the cover-up of the paedophile activities by a former Senator who had been dealing with the four COT Cases? The fact that Warwick Smith, the soon-be administrator of the COT settlement/arbitrations, provided confidential government in-house information to the defendants (Telstra) was a very serious matter.

On 17 January 1994, Warwick Smith the Telecommunications Industry Ombudsman (TIO) distributed a media release announcing that DR Gordon Hughes would be the assessor to the four COT Fast Track Settlements processes. The TIO did not say that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases. The TIO also failed to tell the Australian public in this media release that he had agreed to secretly assist Telstra by providing them COT Cases issue  that were being discussed in the Coalition government Party Room.

Telstra and the TIO was treating us with sheer contempt, and in full view of the TIO and assessor. We were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a judicial inquiry into the way Telstra steamrolled their way over legal process.

To be fair, Austel’s chairman, Robin Davey, expressed his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell asked Telstra questions in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)

Worse than this, however, was a new problem for us COT four. The assessor had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.

Graham Schorer (COT spokesperson) telephoned the TIO, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. The TIO said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra was slow in reimbursing those expenses). He went onto say that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra, Telstra would pull out all stops to force us into a position where we would have to take Telstra to court to resolve our commercial losses.

Moreover, if we decided to take legal action to compel Telstra to honour their original commercial assessment agreement, he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.

On 30 November 1993, this Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo, Mr Benjamin states:

“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.

I hope you agree with this.”

This shows that Telstra was partly or wholly funding the arbitration process.

If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.

It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:

Was the arbitrator and resource unit paid on a monthly basis?

Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11th July 1994, from Telstra to Warwick Smith)?

Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.

To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.

Senator Richard Alston (Shadow Minister for Communications) discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60).

Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference. Has the withholding of these names and the unavailability of my past historic fault documents related to the Jim Holmes issues mentioned below i.e. (see documents A01554, A06507 and A06508 - TIO Evidence File No 7-A to 7-C)?

The TIO had sold us out.

We implored the TIO to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. Austel was no help either, and by April 1994, we had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration, unaware that Telstra’s lawyers had drafted them.

We had had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.

The rules included a confidentiality agreement that prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct.

The Establishment

While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful attempt to have the problems fixed is scattered throughout our story.

To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:

“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.

The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.

On18 November 1993, this same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18th November 1993 (FOI D01274 to D01276, pointing out that:

“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.

(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”

On 23 November Graham Schorer, Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

It goes on to say:

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

A more precise chronology of events surrounding the Fast Track Settlement Proposal v Fast Track Arbitration Procedure as well as who drafted the originall FTAP can be obtained by clicking on Evidence - C A V Part 1, 2 and 3 - Chapter 3 - Fast Track Settlement Proposal.

Signing for arbitration, April 1994

On 21 April 1994 when we signed the documents to launch the new arbitration procedure, we still hadn’t seen the rules of arbitration. Not only did we want to see what we were in for, we wanted to make sure that the rules really were different from Telstra’s ‘proposed rules’. Our concerns were of no interest to the TIO however and so, as lambs to the slaughter, we signed on the dotted line. Later we discovered that the set of rules that had been supplied to the TIO’s office was actually headed "Telstra Corporation- Limited 'Fast Track' Proposed Rules of Arbitration". No wonder he had not wanted us to see it. The assurance we had been given as to the drafting of the rules had been a complete lie. Was anybody interested? I don’t need to give the answer to that.

My time now was focused on preparing my case for arbitration. In April 1994, Austel released its report on the COT cases,, and I used its findings and recommendations as a basis for my claims. I thought its findings in relation to my case were a lot milder than the original submissions I had made, but I learned that Austel had apparently had to tone it down because Telstra had threatened to enforce an injunction tying the report up for years. Austel had agreed to the amendments demanded by Telstra so that we COT four could have access to information in the report to prepare our claims. I did not know then of the ‘secret’ draft that I mentioned at the end of Chapter Three. This I did not discover until 2007.

In the meantime though, the Austel Report did confirm something for me. While I was hearing a constant refrain of ‘No fault found’ from Telstra, technicians were recording the truer picture. On occasions when I had rung to report the phone ringing once or twice, followed by no connection, officials had refused to acknowledge the fault, but in its report, Austel showed a different story:

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party.

This was supported by quotes from technicians on the complaint forms:

‘This problem occurs intermittently throughout the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.’

‘I believe this may be tied up with the axe network problem which gives only one burst of ring and the calling party gets busy tone.’

A new fault

Even as I began to assemble my claims, there was a new fault to include. This was the ‘hang-up’ fault. While Telstra was refusing to send me documentary evidence for my claim, I was ringing their engineers about testing this hang-up fault, creating no doubt more evidentiary material that would be denied to me.

Since August 1993, I had complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct line, which was also a fax line. After I had hung up from calls I had initiated, they could (if they were slower to hang up) still hear me moving around the office. Because of all the other problems I was dealing with, I hadn’t paid much attention to this, but I needed now to come to grips with it.

On 26 April 1994, I phoned Cliff Matherson, a senior engineer at Austel, who suggested we carry out a series of tests. First, I was to hang up and count out loud, from one to ten, while he listened at his end. I did this; he heard me right through to the number ten and suggested we try it again but count even further this time. Again, he could hear me right through the range I counted. Next, he suggested I remove the phone from that line and replace it with the phone connected to my other line (they were both the same Telstra phones, Exicom model T200). We repeated the test, with the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. His next suggestion was that I ring Telstra, which I duly did.

I explained to the Telstra engineer that I could count to 15 or more after hanging up, and that the person at the other end could hear me. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what he would come up with first.

I performed the same tests with the Telstra engineer, with the same results, and he promised to send a technician to collect the phone the next day. An internal email in March 1994 shows that Telstra’s engineer was aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault; the email also adds to the evidence that Telstra was aware of phone faults in the exchange, even while I was preparing my claim for arbitration.

I am concerned to note that heat may be part of the problem. I had occasion earlier this year to get involved in another ‘ongoing’ case involving an RCM with a heat problem at Murrumbateman (just outside Canberra). I do note, that one of the symptoms from the Murrumbateman case was ‘Not Receiving Ring,’ something Alan Smith at Cape Bridgewater has been complaining about for some time.

When my Telstra account is compared with Telstra’s data for this period, the call hang-ups and incorrect charging were occurring from at least August 1993 right up until the phone was taken away on 27 April 1994. The phone itself was an Exicom, manufactured in April 1993, and later proved to be a player in one of the many sub-plots of this saga. But that story comes later.

Preparational costs

In May 1994, A huge bundle of FOI documents finally arrived from Telstra, originally requested by me in December 1993, five months after they should have been provided under the then FOI Act. The legality requirements under the Act states quiet clearly that those supplying that requested information had 30-days in which to release the documentation being sought. However, Telstra has always been a law unto themselves with little the government seemed to be able to quash. ‘Wonderful,’ I thought, ‘now we’re getting somewhere.’ I was wrong. According to the FOI act, documents should be supplied in some sort of order, numbered, and preferably chronological. These documents had no numbering system, and were not in chronological order. Many were unreadable, with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. How could I support my claim with material like this?

A law student to assist would have been a God send. The mountain of documents threatened to engulf me entirely, especially knowing that Telstra’s enormous legal team stood by, waiting to pounce on every slightest crack they could manufacture in the claim documents I submitted.

I sought out the TIO and his legal counsel, explaining my lack of confidence and reiterating Robin Davey’s belief that a non-legalistic hearing was the best and fairest way for us to present our cases. The TIO could only console me with ‘Do the best you can,’ while his legal counsel assured me that the process was fair.

It was at this point of time that I decided I had no choice but to seek professional help. I began by approaching a firm of loss assessors in nearby Mt Gambier who had acted for me after some storm damage at the camp some years earlier. The assessor remembered that he had had a lot of trouble contacting me by phone. After discussing my current position, I decided that my problems were outside his area of expertise. I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

After this, I approached George Close in Queensland. George had technical expertise in the telecommunications area and was already working on Ann Garms’s case. He agreed to take mine on too, observing that we would get more of an insight into how Telstra was operating this way. Once Telstra became aware that we had secured George’s services, they approached him too, with an offer of work. It would seem they were trying to close off all avenues for us. George, however, at 70 years of age, was having none of that. He replied to Telstra that it would create a conflict of interest and, bless his beautiful heart, he declined their offer.

I also needed someone to help put the whole claim together. Finally, I located Garry Ellicott, an ex-National Crime Authority detective with a loss assessor company, Freemans, in Queensland. A final member of my team was Derek Ryan, a forensic accountant.

I felt cautiously optimistic. Government ministers, Austel, even the auditors, all agreed that the COT cases were right and Telstra was wrong. But we still had our backs against the wall. We were all in financial trouble and we were getting no financial assistance from anywhere. I was raising money by selling camp equipment and borrowing from friends.

When we signed on for an FTSP in November 1993, it was not for a legal arbitration. There was no allowance made for us to pay the legal professionals necessary to support our cases, and nor was such allowance made when the plan was switched on us. Had I known that professional fees would ultimately mount to over $200,000, I would never have agreed to the arbitration, even if the TIO and Telstra had held two guns to my head.

Under surveillance - Chapter 2

Telstra email K01006, dated Thursday 7 April 1994, at 2.05 pm raises two issues. Firstly this date falls during the time I was involved in the Regulator-designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least. Secondly, this document refers to a time when I would be away from his business during this pending arbitration process. The author of the email states:

“Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Clearly, the writer knew, in April of 1994, that I planned to be away later that year, in August. In other words, he knew of my movements, four months in advance.

The then-Minister for Communications, the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private telephone conversations were being ‘bugged’.Another FOI document Folio 000605, clearly shows that the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising what outdoor activities we were packaging for two and three night stop-overs. Horse riding, canoeing, caving and bush-walking. How could the writer have this information, if someone hadn’t listened to this call to find out when I was going and which local girl would be on duty at the camp? Anyone reading the AFP transcripts from their interview with me on 26 September 1994 (see AFP Evidence File No 1) they will see that the AFP documented many examples where unless Telstra was not listening into my private telephone conversations they would not have been able to document what they had on these FOI documents. Telstra have never been able to explain how they came by this information. At other times, this same person has also stated that he knew I had spoken to Malcolm Fraser, former Australian Prime Minister, on the phone, and when that conversation took place. (AFP Evidence File No 7) He insists I told him about this conversation, but this is not true. Again, Telstra has never been able to find a convincing explanation for their employee having this information. Obviously Telstra was still listening to my private calls, even though he was then involved in litigation with them and their lawyers.

Listening to private calls is appalling enough, but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25 February 1994 states that the then-Shadow Minister for Communications questioned the Regulator’s Chairman, asking:

“Why did not Austel immediately refer COT’s allegations of voice recording to the federal police instead of waiting for the minister to refer the matter to the Attorney-General and then on to the federal police?

A copy of a letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C). This letter makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP would have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done.

The then-Minister for Communications, the TIO and the Federal police were all supplied with this document, along with a number of other documents indicating my private telephone conversations were being ‘bugged’. Another FOI document, Folio 000605, shows the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising the outdoor activities we were packaging for two and three night stays. This information could only have been gleaned from listening into this call to find out when I was going and which staff member would be on duty at the camp. Anyone reading the AFP transcripts of my interview on 26 September 1994 (see AFP Evidence File No 7) will see the AFP documented many examples Telstra must have listened into our private telephone conversations in order to document the details in these FOI documents. Open Letter File No/12 and File No/13 prove COT cases’ faxes were intercepted during their arbitrations.

At Australian Federal Police Investigations, there is a detailed description of how Dr Hughes (the arbitrator) spent five, non-stop hours interrogating me in front of two of Telstra’s arbitration defence officers. This interrogation included questions that were clearly made in an attempt to discover how far the Australian Federal Police had reached, during their investigations into issues that the then-Government Minister, Michael Lee MP, had officially asked them to investigate, in relation to whether or not my faxes were indeed being intercepted or had just been lost in the system. This sort of interrogation was, however, forbidden under the rules of the signed arbitration agreement but, in Australia, when you challenge the Telstra Corporation, you have absolutely no chance of finding justice!

In January 1999, the arbitration claimants provided the Australian government with a report confirming confidential, arbitration-related documents were secretly and illegally screened before they arrived at their intended destination. In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.

NONE of the COT cases was ever on a terrorist list in 1994 (or since, for that matter) and none of us was ever listed as suspects regarding any crimes committed against any Australian citizens. Why were our in-confidence arbitration and Telstra-related documents hacked by Telstra? In my case, 43 separate sets of correspondence faxed to the arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material as received by the arbitration process. Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994 six of my claim documents did not reach arbitrator’s fax machine. Yet, I was charged on my Telstra account for those six faxes. When this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that proven “not received” claim documents were valued by the arbitrator in support of my claim.

I raised enough cash to bring Garry Ellicott to the camp for a few days in May 1994 to observe what was going on with the phones. During his stay, Garry commented that he believed I was being watched, or rather, listened in on. His background as bodyguard for US President, Jimmy Carter, gave him some experience in this area during his visit to Australia.

I already had experienced several instances of Telstra accumulating personal information about me — details of who rang me, when they rang and from where, when staff left my business, even my movements. In April 1994, Telstra's Melbourne fault reporting officer seemed to be aware of my movements four months in advance when he wrote an internal memo to another member of staff:

Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc …I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.

Telstra has never explained how this Telstra fault officer came by this information, nor how he also knew I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone, and when that conversation took place.

This person insists I told him about this conversation but this is not true. I told him no such thing.

In an internal Telstra memo around the time of the ‘briefcase saga’, the unidentified writer, a local Telstra technician, offers to supply a list of phone numbers I had rung. I had previously learned that the writer was listening in to my private conversations and, when I challenged him with this information, he informed me he was not the only technician in Portland listening in.

Not long into our arbitrations, Graham Schorer (in his official role as COT spokesperson) received two phone calls within a couple of days, both from young people. They told Graham they knew we were in arbitration with Telstra and wanted to alert him to what they had discovered when they hacked into Telstra’s email network. They had found documents confirming that there were people close to our arbitration – as well as Telstra – who were acting unlawfully towards us. Both times they rang they asked if we would like them to send us that evidence.

Graham and I discussed the offer of the first call, but we finally said NO on the second call although we were interested in what Graham had heard. We were concerned this might be a set-up by Telstra and therefore if we agreed to accept this promising material, then both our arbitrations might be declared null and void.

Since then, Andrew Fowler and Suelette Dreyfus have each published book referring to Julian Assange’s hacking into Telstra’s Lonsdale Telephone Exchange in Melbourne, which Graham’s business and mine were trunked through. Was it Julian Assange and his friends who had contacted us? His concerns about the COT cases not getting the justice we were entitled to, certainly matches his profile.

In hindsight, we probably should have accepted that very kind offer. We might well have been able to use that evidence against Telstra all those years ago, and perhaps we would not be here writing our story 20 or more years later.

This side of the COT story can be accessed by viewing our website absentjustice.com and clicking onto our Hacking - Julian Assange page.

Between February and September 1994, I provided documents to the Australian Federal Police which I had received under FOI showing Telstra knew more about my private and business arrangements than it should have. On 3 June 1990, during the period Telstra was telling me they had not found any problems (faults in their network) that were still affecting the viability of my businesses, "The Australian" (newspaper) printed an article under the heading: Telecom ‘spying’ on its employees, which supports pages 1 to 6 of the AFP transcripts (see Senate Evidence File No/ 44 Part 1 and File No/45 Part). The newspaper article states:

“She said the accusations were contained in a statement by a former member of Telecom’s Protective Services branch.

“Senator Jenkins said the man claimed:

He and other Telecom employees and private investigators hired by Telecom did secret surveillance on hundreds of compensation recipients. …

He had been directed by his superior to use whatever methods to get the desired results, even when it was obvious the claimant was genuinely injured.

Claimants have had a ‘C.CASS run’ on their homes, which is a procedure where a computer can print out all numbers dialled on a home phone.” (See Hacking-Julian Assange File No/19)

Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities included bugging workers’ homes. …

In February 1994, the AFP visited my business at Cape Bridgewater to discuss my claims that recently received FOI documents suggested Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called, on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include against dates, the names of people that I telephoned and/or faxed e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appears when I phoned my ex-wife. This reflects Senator Jenkins statements above regarding Telstra’s secret surveillance of their own employees in 1990, because here is Telstra using similar tactics in January 1994 while they were in a litigation process with me.

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The other three COT Cases businesses were in central Brisbane and Melbourne. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me for some time concerned that people in his electorate were being treated as second-class citizens. On 26 July 1993, Mr Hawker wrote:

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 18 August 1993 The Hon David Hawker again wrote to me, noting:

“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.

“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.” (See Arbitrator File No/77 and Arbitrator File No/82)

An internal hand-writen Telstra memo (see AFP Evidence File No 8) discusses two singles club clients of mine (I have redacted the names of these clients for security reasons), describes the constant engaged signal she experienced when trying to book a weekend during April and May 1993. AFP Evidence File No 8) dated 17 June 1993, records the personal phone numbers of these two ladies, but it also confirms Telstra was fully aware of when my office assistant left the business while I was away.

My AFP interview transcript on 26 September 1994 describes Telstra recording who I phoned or faxed, and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript, together with other documents I provided to the AFP between February and November 1994, prove that Telstra had listened in on private conversations.

So chronic and serious were my telephone faults in early 1993, that Telstra threatened (the first of two series of threats) that I had to register my ongoing telephone/faxing problems with their outside lawyers or they would refuse to regard my complaints as genuine.

By July/August 1993, the communications regulator was becoming concerned at Telstra’s approach to our complaints; particularly their continual use of outside solicitors. In October 1993, while the regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the regulator’s chairman made it clear to Telstra’s commercial division that the regulator would not be happy if Telstra’s solicitors were used in future COT matters. This request was ignored however and Telstra continued to insist that I register my complaints through their solicitors, even though by then I was in litigation with Telstra

This fight was dirty and controlled.

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time, I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the regulator and me, with regard to incidents that occurred between January and August of 1993. The arbitrator would not investigate this information.

One document I provided the AFP in 1994, does not state Adelaide or a specific location elsewhere, other than I was visiting Melbourne. I used to visit both Melbourne and South Australia on a regular basis from 1991 to 1993. Did Telstra even know where I stayed and who with? Let us not forget, I was not under suspicion of committing any crime let alone a serious one, nor was I suspected of being a terrorist. So why were the communications carrier and/or their government minders interested in my contacts and movements? When I showed AFP Evidence File No 8 to Margaret (my office assistant) she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm just as described in this Telstra memo). This part of our Hacking-Julian Assange page more than suggests that my daily moments were monitored by someone and/or some organisation who had ready access to Telstra’s network.

After the AFP had discussed that Telstra file note with me it became clear that Telstra knew that I was getting regular phone calls from someone in Adelaide who usually rang from his Pizza Restaurant but, on this occasion, they had noted that he had phoned me from a different number. AFP transcripts indicate their concern that, in order to have gained this knowledge, Telstra must have been listening to ALL my telephone conversations, both on a regular basis and for some considerable time. I alerted AUSTEL to this situation because some documents, which I have retained, record some eighty or more calls that should have connected to my business but didn’t, because they were illegally diverted to another number. At that time, this is exactly what was happening to other businesses around Australia too, and AUSTEL and the AFP could both see that all those calls were being diverted to the same business.

Federal Police investigation

Other members of COT also experienced this ‘voice monitoring’. In a Telstra internal memo relating to the Tivoli Theatre Restaurant, owned and run by Ann Garms in Brisbane, is the comment:

Tests looped … maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly? (See to exhibit 2 file Phone/fax bugging 1 to 8)

An ongoing Telstra fault record relating to the Tivoli Restaurant provides surprisingly interesting reading when it makes reference to the Federal Police investigation:

John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services … Why was Federal police stopped from investigating the Tivoli Case …

Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years …”

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart (See exhibit 1 file Phone/fax bugging 1 to 8)

In January 1994, COT members informed the Minister of Communications of our suspicions of Telstra bugging, after which things happened very quickly. The Minister ordered an investigation by the Federal Police (AFP), and on 10 February 1994 Austel wrote to the Telstra Manager in charge of the COT arbitrations:

Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.

On 25 February, Senator Alston, then Shadow Minister for Communications, asked Austel’s Mr Robin Davey in the Senate Estimates Committee hearing on COT issues:

Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?

Be that as it may, when the AFP interviewed Austel, they were provided with documents showing that Telstra had listened in to my phone conversations.

In a letter to Telstra in February 1994, John MacMahon, General Manager, Consumer Affairs, Austel, acknowledges receipt of nine audio tapes from Telstra and notes that these tapes, which are related to the ‘taping of the telephone services of COT Cases,’ had been passed on to the AFP. No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian states in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a legal resolution process involving the COT members.

Despite these investigations, no findings of Telstra’s surveillance or monitoring activities have ever been officially presented. At the time of writing, Telstra has still not been held to account, even for those which took place when Telstra was in arbitration with me. If the AFP or the government had pursued these questions, I would not still be searching for answers today.

On a number of occasions during 1994 I was interviewed by the AFP on this matter, and while they were unable to show me the documents and tapes Austel had given them, it seemed to me they were taking my problems with Telstra and my arbitration seriously. In one interview, I showed them an FOI document which conveys that the writer knew where the caller usually rang from even though, on this occasion, the caller was phoning from a different number, ‘somewhere near Adelaide’. The police were concerned about how a caller was able to be identified if he called from another number.

Constable (name deleted) of the AFP affirmed for me that Telstra had provided them with evidence of this ‘live monitoring’, which had gone on for some time:

… you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it.

Senator Alston also put a number of questions on notice for the Senate Estimates Committee, to be answered by Telstra. These are the questions most pertinent to the COT claimants:

5.    Could you guarantee that no Parliamentarians, who have had dealings with ‘COT’ members, have had their phone conversations bugged or taped by Telstra?

9.    Who authorised this taping of ‘COT’ members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

       (B) Of these, how many were customers who had compensation claims, including ex-Telstra employees, against Telstra?

In all the FOI documents I have searched, I have never seen these questions answered.

Other FOI documents I presented to the Australian Federal Police show that Telstra officials were making notes on who I rang and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. I kept the TIO informed of such developments, but at no point did he ever make any response on the matter.

An extraordinary intervention

At the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me, wanting to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken this upon himself to find the cause of my complaints. He was understanding, respectful and courteous, and I told him I thought that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word.

‘Cape Bridgewater COT Case’, an internal Telstra email dated 6 April 1994, shows the result of his influence:

Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS …

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).

Another, dated 7 April 1994, followed with:

At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.

(In fact, an extra 30 circuits into Portland (30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. But either way, the increase in lines was appreciated allowing more 008/1800 customers to finally connect to my business)

It needs to be remembered too that much of the business income that I lost in connection to my social and single club setup was directly related to my then-ongoing telephone free-call 008/1800 service problems and, coincidentally, many of the social club patrons who had been unable to get through to me on the phone (which meant, of course, that they couldn’t book in), came from Ballarat, Melbourne and South Australia.

On one of these many occasions, AUSTEL took up an investigation, on my behalf, and that revealed the problem I had raised with Telstra, in the past, about Ballarat’s telephone public phone system, a problem that had, until then, lasted for more then two years and, as AUSTEL actually states at point 115 AUSTEL’s Adverse Findings), if it had not been for my persistence in demanding that Telstra investigate my complaints about Ballarat’s telephone system (even though I wasn’t even living there then), this fault that turned out to be a problem in Telstra’s public phone system, would have continued to affect the Ballarat region long after the two years it had already existed in the network

Break-ins and losses

From the sublime to the ridiculous. It was also March 1994 when Graham Schorer and another COT member suffered break-ins and lost business-related documents. That made all of us a lot more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from then on I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.

During his visit, Garry Ellicott and I spent five nights trying to decipher the pile of Telstra discovery documents. It was during his visit I discovered further losses: exercise books in which I kept official booking records; a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland I got him to take the work diaries with him for safe-keeping.

The fallout from all this became evident some weeks after my oral arbitration hearing in October 1994, when the arbitrator asked for my annual diaries for assessment. Garry sent them directly to his office. Soon after that, Telstra submitted their defence of my claims. Then, two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

I have explained over many years as to how, and why, I’d had to copy fault complaint records into the diaries from exercise books, and affirmed that nonetheless, my chronology of fault events was true and correct. I have since reminded him and the arbitration project manager that during my oral arbitration hearing I had practically begged to be allowed to submit these fault complaints notebooks (as the transcripts of this meeting show. But as the transcripts show Telstra had objected to the submission of these facts and the arbitrator had asserted, without viewing them, that they were irrelevant.

Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated:

… I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability

I contend that if the arbitrator had allowed these notes taken from my exercise books as evidence, and provided them to Telstra’s Forensic Documents Examiner, Mr Holland would have had a clear understanding of what the exercise books really were and would have realised there was no attempt at deception. On a similar note, I suppose that some readers might be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish.

Yet during his time as Minister for Communications in the early 1990s, Senator Kim Beazley was concerned at how Telstra’s Protective Services Unit spied on its own technicians and other employees, documenting their movements while they were on sick leave, so I do not think it unreasonable that we COT members believed we also were being spied on.

For one instance, in July 1992 I had asked Telstra for a written guarantee that my phone service was up to network standard. I wrote this request to Telstra without ever mentioning the name of the bus company who had asked for the guarantee, but in 1994, among documents sent in response to one of my FOI requests, I found a copy of the letter I had written, on which the name ‘O’Meara’ had been scrawled. Had Telstra been listening to my phone conversations? If so, this was spying, way back in 1992, long before the arbitration process began. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the core of Australian democracy.

Trying to produce a claim in some readable form when the story was so complex, multi-layered, and complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became life-lines to Garry Ellicott in Queensland.

When Garry attempted to ring me on 27 May 1994 on my 1800 service he twice reached a recorded announcement telling him my number was not connected before he finally got through. When Garry rang Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. ‘How,’ he asked, ‘can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.

On the subject of these recorded announcements, the Austel report observed:

Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances

I had been fighting for more than six years and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request for Telstra data and each request would take at least 30 days to bring results. No sooner had I faxed information to the arbitrator detailing the previous month’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. If anyone heard my tales of frustration, they apparently didn’t care.

Hackers For Justice

A Man With A Conscience

On page 15 in the novel The Most Dangerous Man In The World by Andrew Fowler, he makes the following statement:

"The Lonsdale Telephone Exchange in the centre of Melbourne with its black marble facade, is an eye-catching building. In the last 1980s it was the gatway to other telephone exchanges and organisations linked to super computers around the world".

The information on Bad Bureaucrats - Taking on the Establishment and Chapters 1 to Chapters 9 Julian Assange Hacking are all related to the following a discussion Graham Schorer (COT spokesperson) had with a group of young hackers who we now beleive was Julian Assange and his friends. These young hackers contacted the group during the early part of COT arbitrations.

That the hackers informed Graham Schorer they had broken into.the Melbourne Lonsdale Telephone Exchanges.

In June 1993, more than twenty years before Andrew Fowler and Julian Assange had ever heard of the Lonsdale Telephone Exchange, Telstra had left an unlocked briefcase at my premises; it revealed that the Lonsdale Telephone Exchange had poorly been programmed and that the Ericsson AXE telephone exchanges equipment being used by Telstra in their telephone exchanges were known to be suffering significant faults.

On 4 and 5 June 1993, I freely provided AUSTEL (the then government communications regulator this evidence without copying much of it because of my limited copying facilities. A facsimile machine and a roll system were OK for faxes arriving, but that was its fundamental limitation. Later AUSTEL's Queens Road Melbourne office discovered from reading further documents that it became apparent other countries around the world were now removing the Ericsson AXE equipment from their exchanges or had removed it from their exchanges. So why was Telstra still using this equipment that destroyed businesses throughout Australia?

I provided the AUSTEL with further damaging information concerning the weaknesses in Telstra's Melbourne Lonsdale Exchange which showed that 50 per cent of my Melbourne telephone callers from Melbourne calling into my business at Cape Bridgewater 430 kilometres away were trunked through the Lonsdale Exchange. Telstra had somehow forgotten to programme the first six digits 055 267 of the Cape Bridgewater telephone exchange into the system for at least eight months. While this was bad enough, those callers received a recorded electronic message telling them my business was no longer trading.

So, when we were offered documents from an unknown source stating the hackers had gained access to Telstra's Melbourne Lonsdale Telephone Exchange which we knew was linked to the outside world, alarm bells began to ring. We were being offered emails and faxes proving Telstra and others had us COT Cases under electronic surveillance during our arbitration; we thought this might be set up. Was the Lonsdale Exchange the carrot to trap us into accepting documents outside of the arbitration process? Therefore, we declined to take the documents on offer.

A statutory declaration prepared by Graham Schorer (COT spokesperson) on 7 July 2011 was provided to the Victorian Attorney-General the Hon Robert Clark. This statutory declaration discusses three young computer hackers who phoned Graham to warn him during the 1994 COT arbitrations. The hackers had discovered Telstra and others associated with our arbitrations were acting unlawfully towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his  Melbourne and Sydney offices …

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.”

Chapter 6

Arbitration

It is time I introduced Cathy. We met in 1993 when she brought a group of underprivileged children to the camp from Ballarat. She was a very warm and competent coordinator in the field of family support. We stayed in touch after that, and she assisted me from Ballarat in various camp operations over the next year or so. Then in May 1994, she agreed to come and work at the camp while I concentrated on my arbitration. By the end of the year, we were partners.

Her assistance was timely, for in the course of preparing for my arbitration came new nightmares. I discovered things I thought I’d faxed to my advisers or to the arbitrator had not got through. I was regularly contacting Austels two nominated representatives with evidence of pages of my faxes which came out at the receiver’s end as blank pages, often with a small symbol at the top of each page, on the left or the right.

And, of course, Telstra charged me for these blanks (as it also continued to charge me for unconnected 1800 calls), each of these pages appearing on my Telstra account in terms of minutes to transmit. I asked Telstra repeatedly, in writing and through various legal processes, why these pages should arrive at the other end as blanks, but I never received an answer.

I told my arbitrator I believed he was not receiving all the faxes I was sending him. Regarding one instance, on 23 May 1994, Telstra insisted the problem had occurred because the arbitrator’s fax was busy when my fax was attempting to get through. Whatever happened to my fax, hearing a busy signal and trying again? And besides, why was I charged for the call? In fact, my phone account showed, on this day, charges for seven non-connected calls to the arbitrator’s office. The question is, where did those seven faxed claim documents end up? It is clear who benefited from their disappearance, but still, the arbitrator was not interested in investigating this.

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by May 1995. My home account was another $2000. Telstra, meanwhile, had set up a special office just to deal with the COT arbitrations, and in 1996 admitted that the COT arbitrations had, up to then, had cost Telstra in excess of $18 million. All this to fight a small group of small-business people who were looking only for Australian justice!

Meanwhile, we were asking the Commonwealth Ombudsman to investigate why Telstra would not supply our discovery documents. The longer we were kept waiting, the longer our advisors and researchers were kept waiting, and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Telstra seemed deliberately delayed the supply of the discovery documents, giving them more time to prepare their defence or giving their legal unit more time with the discovery documents before our advisors saw them. Either way, it seemed to me the whole arbitration was being orchestrated by Telstra as an exercise in thwarting any investigation into their dubious conduct. Certainly an exercise in power imbalance, with the arbitrator weighing in on their side in a myriad of ways.

The FOI documents were unreadable or totally blank

In June 1994, I was obliged to ask the arbitrator for extra time to prepare my claim and was allowed one extra week. By contrast, the records show that Telstra was allowed an extra 72 days. A Telstra representative was in the arbitrator’s office when Graham Schorer and I arrived with my interim claim documents on 15 June 1994. My documents were taken away by Telstra’s defence counsel. I could not understand how the arbitrator could allow Telstra access to my interim claim documents when he knew I was still waiting for vital discovery documents to complete my submission. Moreover, the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, but they did not present that defence until 12 December 1994, six months later.

On 11 July 1994, Steve Black, Telstra’s arbitration resource unit, writes to Warwick Smith, stating:-

Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request.

The statement in Telstra’s letter: -

“if the resource unit forms the view that this information should be provided to the arbitrator.”

This confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator

If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further on our website link (see Telecommunication Industry Ombudsman/Chapter Four. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter, which is discussed later in our story which the TIO states did not exist when our exhibit file shows it did exist and was clearly received at the arbitrator’s office as the 24 January 1995 fax-footprint shows,

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration!

It is also important to point out that page 5 of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires states:-(6) Presumption of single arbitrator

An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.

The arbitration agreement the four COT Cases, signed in April, 1994 mentions only one arbitrator. They have never seen any written agreement that allows a second arbitrator to determine what information the first arbitrator and claimants will see.

Service Verification Testing, September 1994

On 29 September 1994, when this SVT process was supposed to bee carried out, my partner and I sent individual statutory declarations to the arbitrator, the TIO, AUSTEL and Telstra and I continued to write letters regarding this failed process until 15 February 1995 (see Bad Bureaucrats File No/15). After my letters to the TIO and arbitrator on 2 and 10 October 1994, I telephoned the TIO’s office to demand that, as administrators of my arbitration, they call on DMR Australia Pty Ltd, the organisation assigned to assess any technical matters that arose, to fulfil their role in relation to the SVTs: my request was denied.

A Telstra internal email, dated 13 December 1993, shows AUSTEL’s deputy chair Dr Bob Horton allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing, i.e.,

“This E-Mail is to alert you to a possible regulatory interaction with the current work on ‘COTS Cases’ and ongoing work with AUSTEL on network performance.

“As you know, a Ministerial Direction gave AUSTEL power to set end-to-end network performance standards. …

“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with Bob Horton and a presentation to the Standards Advisory Committee by , AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern.” (See Arbitrator File No/72)

Dr Horton was AUSTEL’s acting chair at the time. It is easy to see just how bad this situation was for me by simply linking this limiting of the mandatory testing with another Telstra internal email, dated 15 November 1993, which states that:

“Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them – I am attempting to check them. Some of the people supplying this information live in ‘old Telecom’!” (See Arbitrator File No/73)

The following is from the transcript of an oral interview of AUSTEL’s representatives, Bruce Matthews and John McMahon, conducted at the Commonwealth Ombudsman’s Office on 22 September 1994. On page 7 of this transcript, John Wynack asks, “What was the date the report was issued, the AUSTEL report?”

AUSTEL’s representative replies, “The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (As we have shown throughout this website, See Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes it clear Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The version we received in 2007 was certainly not the draft version we viewed in the lock-up meeting.

PLEASE NOTE:

Meanwhile, on 29 September 1994, Telstra’s Chief Engineer brought Service Verification Testing (SVT) equipment to the Camp. Telstra was obliged to prove that there were no longer any phone problems. Right from the start, this engineer experienced major problems getting the equipment to work on any of our three separate lines. Nevertheless, he went ahead with his testing.

No calls were able to reach the camp, so Telstra technicians at the exchange were generating calls for testing purposes. Whatever the results, they had to be totally meaningless because the fact was true incoming calls were not received. On 2 October and 10 October, I complained to Telstra about these deficiencies in the verification testing and sent copies to the arbitrator, the TIO, and Austel. There was no response whatsoever to our statutory declarations.

However, six weeks later, Austel responded, writing to Telstra expressing concerns about the SVT testing process as it was conducted on 29 September. The testing did not meet Austel’s mandatory specifications for testing. Telstra’s own CCAS data for this day confirms that not one of the tests carried out on my three lines met Austel’s testing requirements.

Nevertheless, Telstra went ahead and presented the test results in their arbitration defence. Concluding that my services were now at network standard, along with a sworn statement by this particular engineer that the tests had met all of Austel’s requirements when shows they did not meet those requirements at all.

I do not know what to call this act of blatant, intentional misrepresentation. Certainly not ethical, and I’m sure it was not legal. Why did I not do anything about this? Because I did not learn about it until 2002, seven years later and neatly outside the statute of limitations.

Had the arbitrator been made aware of the said deficiencies that Austel had raised regarding the SVT testing and that the testing could not have produced the mandatory success rate, the arbitrator, would have been duty-bound to find in my award. In doing so, Telstra was operating outside their licence agreement by not supplying a level playing field to operate my business on the same terms as my competitors.

Austel, for its part, seemed quick to forget its letter of 16 November. In its quarterly report on the COT Cases to the Minister for Communications and the Arts in February 1995, it withheld its true findings and stated baldly that:

All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established.

What happened to Austel to make it change its tune?

My oral hearing was arranged for 11 October 1994. This hearing followed the submission of the interim claim documents. It was for the purpose of determining for the arbitrator what other information each party might need to supply to assist the process — the documents I needed to access from Telstra, and vice versa. I also asked that Telstra’s failure to supply FOI documents in a proper and timely fashion be raised at the hearing.

The arbitration rules allowed me legal representation if Telstra had legal representation, but where would I find the money to pay a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? At least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another, making them unavailable to any COT member.

In August, five months into the arbitration process, the TIO, in his role as administrator to the arbitration, informed me that the arbitrator himself was a senior partner in a legal firm that was also working for Telstra at the same time. I protested that this surely represented a conflict of interest, but the TIO assured me this was normal practice; he wanted merely that I confirm, in writing, that I had been informed of this situation. Five months too late. What could I do? I saw no choice but to continue with the arbitration and participate in the oral hearing.

I had been advised by the arbitrator that Telstra would not have a lawyer present at the oral hearing, which was a relief, and I went to the hearing believing this would be, more or less, a meeting of equals. How foolishly wrong I was. On Telstra’s side of the table sat two of Telstra’s top executives, both men with legal training. I felt like David up against Goliath. How could I not have known it would be like this?

During the hearing, I produced four-fault logbooks containing, amongst other things, the contact information of over-40s singles clients who had not been able to reach my business by phone. I asked to have these books accepted into the procedure. I had not submitted them earlier, I explained because the information had been given in confidence. I trusted that by submitting them directly into the care of the arbitrator, the information would be secure. The supplied books demonstrated conclusively that I had, in fact, lost business calls as a direct result of faulty phone service. It also detailed that I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going.

Telstra insisted that the information was not relevant and should therefore not be accepted. The arbitrator concurred, and I was not allowed to submit the logbooks. At this point, I finally admitted to myself that the arbitrator was not acting impartially, nor had he been from the beginning.

The FOI issue wasn’t even touched on in the oral hearing. The arbitrator was supposed to facilitate the timely provision of requested documents to me, and many times I had asked for his assistance in this, but none of my requests was fulfilled; I suspect he didn’t even pass them on. However, he did direct me to provide some 40 extra documents and pages of attachments and further particulars that Telstra had requested through the same discovery process. I complied on every single occasion, at my own expense, but, in return, I received none of the relevant documents I had requested. Something was very wrong with this whole process.

I had been fighting for justice for more than six years. Fighting a losing and costly battle, simply because I wanted to set up business in a rural hamlet that Telstra’s senior board saw no benefit in upgrading. The oral hearing made me realise that I was truly on my own in this: the arbitrator couldn’t be relied on to be independent. I warned the other COT members of what they, too, might face. We had been conned. The TIO’s office had assured us — and the Senate — that this would be a non-legalistic process. They were taking me to the cleaners.

Over the next two months before Telstra lodged their defence of my claim, I continued to search through all the material I had, looking for something, anything, to help improve my position, hoping to find the elusive discovery documents I needed.

Interim submission

In my interim claim, I submitted a list of 183 separate faults between late 1989 and early 1994. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults logged by Telstra’s own fault centres in one 8-month period alone, from January to August in 1993. On top of these, I included for assessment more than 70 letters I had received from people over the years, describing their difficulties in reaching me by phone. Some of these letters were written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems.

Yet despite this mass of material, the arbitrator's ‘independent’ technical resource unit said in their report that ‘... a comprehensive log of Mr Smith’s complaints does not appear to exist.’ The current 2015, Senator Barry O'Sullivan (Queensland National Party) can vouch that the material was submitted by his partner at the time, Garry Ellicott. What happened to it?

The list of letters of support written to me did not appear on the list of documents received by the resource unit. Presumably, they had not been seen by the arbitrator either. This was a bitter blow. What happened to them? (See Prologue/Chapter One)

The AFP and Mr Rumble

The Federal Police came to Cape Bridgewater to interview me in February 1994 regarding the fact that Telstra was intercepting COT case phone conversations. The evidence we COT members had assembled had convinced Austel and the Minister of Communications that Telstra had a case to answer. Under the Telecommunications Act 1991, Telstra was obliged to provide Austel, the regulator, with any data pertaining to the interception of telephone conversations with the four COT cases. Telstra had supplied nine audio tapes, which Austel then passed to the AFP.

The Federal Police wanted all documentary evidence I could supply of Telstra having intercepted my fax or telephone conversations, and I made copies of several FOI documents for them to take away. This was to have serious consequences for me.

At the end of June 1994, Telstra’s main 'thug' we shall call him 'dog' rang me about my complaints regarding the slow delivery of FOI documents I needed for preparing my arbitration claim. I had complained to the Commonwealth Ombudsman, who was now leaning on Telstra. But the 'dog' astounded me when he told me the slowness of delivery was due to Telstra needing to ‘vet’ the requested documents for any ‘sensitive material’ — because I had passed the material on to the Federal Police. This was preposterous on at least two counts. First, the slow delivery had been going on since my first request for FOI documents. Second, it was my civic, if not legal, duty to cooperate with any police investigation. It was certainly not a subject that a telecommunication corporation should have any jurisdiction over.

But that wasn’t all. The 'dog' then said that I would not be provided with any further documents if I continued to pass them on to the AFP. This I understood as a clear threat to withhold critical FOI documents necessary to support my arbitration claim. I assured him I would not. A few days later, I wrote to affirm this with the 'dog':

I gave my word on Friday night that I would not go running off to the Federal Police etc., I shall honour this statement and wait for your response to the following questions I ask of Telecom below.

And indeed, I had no intention of providing the AFP with any more FOI documents. When the AFP visited me again in September 1994, I showed them a copy of my letter to the 'dog', which they found very interesting as their transcript of the interview shows:

The thing that I’m intrigued by is the statement here that you’ve given 'the dog' your word that you would not go running off to the Federal Police, etcetera. Question 57, p. 12 Australian Federal Police Investigation File No/1

But I did, in July, write to inform the arbitrator that Telstra had threatened to withhold further FOI documents because I had supplied them to the Australian Federal Police to help with their investigations into Telstra’s interception of my telephone conversations. The arbitrator did not respond to my letter, nor did he comment when the issue was raised in parliament.

Threats Carried Out

On 29 November 1994, Senator Ron Boswell asked Telstra’s Legal Directorate:

Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?

Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?

That Telstra’s Legal Directorate had no answer for these two questions was understandable. That the arbitrator could not even ask the questions why I should be penalised for carrying out my civic duty in an official police investigation was not. Months before he handed down his award, my arbitrator's silence told me that the result would not favour my complaints of ongoing telephone and faxing problems.

But it is not just the arbitrator who let me, and the course of justice, down. No one in the TIO office, Austel, or the government was prepared to investigate either.

And what about the threats made against me by Telstra management before I went into arbitration that if I did not raise my phone complaints in writing with (Telstra's outside lawyers) then Telstra would not investigate those complaints.

Why didn't the arbitrator combine these threats made against me as a serious breach against my civil liberties as an Australian citizen?

Why weren't these threats addressed in the arbitrator's written findings?

Chapter 7

Telstra’s defence

Telstra’s response to my claim arrived on 12 December, a bound document entitled ‘Telstra’s Legal Submission (1994)’. I felt sickened before I even opened it. I still hadn’t received most of the FOI documents I had requested, and here they were, making a response based on little more than half of my submission.

That was the least of their perfidies. Here arises the infamous story of the sticky beer in the phone.

Previously, in Chapter Five, I related the story of how Mr Mathieson of Austel helped me test two different Exicom model TF200 phones on one line to determine if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. I later acquired documents that Telstra was aware that this fault often occurs in moisture-prone areas like Cape Bridgewater.

My copy of Telstra’s Legal Submission, however, included a 29-page report titled ‘T200’. This document argued that the ‘lock-up’ problem with my phone/fax had been caused by spilt beer, found inside the phone's casing.

For the record, the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994. According to the supplied photographs, they showed the outside of the phone was very dirty and, and according to the technicians, when they opened the phone up, the inside was ‘wet and sticky’. Analysis of the wet and sticky substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hook switch’ to lock up. So, my drinking habits were the cause of my phone problems. The technicians didn’t know that Mr Mathieson and I had tested two different phones on that line and found the same fault.

Moreover, when the phone left my office, it was quite clean — so how did it arrive at the laboratories in such a filthy state? If the ‘beer’ was not deliberately introduced, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me.

I put in a request with the arbitrator for a copy of the laboratory technician’s notes to see how they arrived at their conclusion. I explained I had appointed my own forensic document researcher to look over the documents. In response, I received another copy of the original report — another instance of one rule for COT claimants and another for Telstra. Only a few weeks before, the arbitrator had allowed Telstra’s forensic document researcher access to my personal diaries.

I cannot begin to explain the anger that simmered inside me. I needed to expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ farce. I knew they had faked the evidence, but I couldn’t prove it. And no matter who I contacted about this — Senators, the arbitrator, the arbitrator’s secretary — no one cared to know.

Telstra was even saying ‘beer-in-the-phone’ was the cause of my ongoing fax problems, so I set about accessing Telstra’s technical analysis data covering the times when my fax problem was at its worst. This data showed that the ‘lock-up’ fault occurred in the network system since at least August 1993. So I asked the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone from August 1993 to May 1994.

In fact, this data wasn’t even necessary to prove my case. Telstra had supplied a new phone to replace the one they took away, and it was no surprise to me that, according to their own data, the lock-up problem remained after the ‘dirty’ phone was replaced. It was still a problem when I sold the business in 2001.

As to Telstra’s assertion that the telephone was ‘very dirty’, it is fortuitous that, just before the technician took the phone away for testing, I had attached a white label to the front advising staff this was the phone to use. It was perfectly clean, as the photo Telstra took when it arrived at its laboratory shows. They had failed to keep track of their deception. You don’t need a forensic document specialist to see the difference between the two photos provided by Telstra, reproduced here as (Main Evidence File No/17 and the Arbitrator File No/30). Yet I could find no-one willing to challenge Telstra on tampering with evidence in a legal process, which is a criminal act.

I had urgently and constantly requested the Exicom/TF200 laboratory testing results for my arbitration, which was not supplied by March 1995, so I lined up Paul Westwood, of Forensic Document Services to investigate my suspicion that Telstra’s TF200 report was fraudulent. The arbitrator, however, refused to appoint him, and there the matter remained, until November 1995, six months after my arbitration was declared final, when there came another instalment of the ‘beer in the phone’ saga.

In a bundle of FOI documents, a laboratory report showed that Telstra had carried out two investigations into my TF200. The second (on 24–26 May 1994) was two weeks after the first (10–12 May), and it proved that the first one — whose results had been provided to the arbitrator — was a total fabrication. Someone in Telstra had realised the first report was in some way dodgy and had authorised the second.

The second report, handwritten by Telstra laboratory staff, included graphs and photos, and it showed that when wet beer was introduced into the TF200 phone, it dried out completely in 48 hours. My phone, found to be ‘wet and sticky’ in the first report, had not been tested until 14 days after being taken from my office. There was no way it could have been ‘wet and sticky’ after two days, let alone two weeks.

So Telstra management knew, when they submitted that first report as part of my arbitration, that their second laboratory investigation had proved the first one was (to say the least) unreliable.. But even with this freshly received evidence in November 1995 (five months after the conclusion of my arbitration), the TIO refused to investigate. Receiving vital evidence which I should have received during my arbitration mattered not to those administering the COT arbitrations.

Beyond the beer in the phone deception, many other misleading statements were made under oath by Telstra’s defence unit and their technicians and included in their Legal Submission. Most disturbing of these were the signed Statutory Declarations made by some of the local technicians. They knew from experience that Telstra’s network system into the local exchange was not up to standard. These technicians who still signed these legal documents insisted everything (except for some minor, everyday type faults) had been all right during the period covered by my claim.

One local technician went so far as to say that he knew of no other business in the Cape Bridgewater area that reported the type and number of phone problems that I had. His statement even included mention of a friend, a stock farm agent, who had never had phone problems in Cape Bridgewater. When I checked Telstra’s own fault data, however, this very friend had, in fact, complained seven times in a matter of weeks during early 1994, including complaints about his fax line.

Another three local technicians stated under oath that back in 1988 when I moved to the area, the old RAX exchange at Cape Bridgewater had five incoming and five outgoing lines. Any ensuing congestion would not have affected my service much during business hours. In fact, the exchange had only four lines in and out, and Telstra’s archives show congestion was a problem between the Cape Bridgewater and Portland exchanges.

The worrying thing is that if these three technicians truly believed their story, they were not very good at their jobs. Someone should have noticed there were only eight final selectors!

My reply to Telstra’s defence, January 1995

By chance, it was during this time I saw the American movie Class Action, the story of a pharmaceutical company that knew the dangerous side-effects of one of its drugs but continued to sell the drug anyway. A chemist preparing a report for the company finds a flaw in the drug production, and the company chose to ‘lose’ the report rather than spend the money to correct the flaw—business as usual. What struck me about this story was how the pharmaceutical company swamped the lawyer representing the patients with thousands of documents at the very last minute. The lawyer had a very hard job finding a key report in time. According to the movie, this process of ‘burying’ important documents is called ‘dumping’.

Just before Christmas, and eleven days after they had submitted their legal defence, Telstra ‘dumped’ approximately 24,000 discovery documents on me — the very documents I had been waiting for to make my submission complete. And, of course, the material I needed was buried in masses of irrelevant documents.

Clearly, this was a ploy. Telstra thought that by supplying them after I’d made my submission, it wouldn’t have to defend those documents, especially given I had only two weeks in which to submit my reply to Telstra’s defence.

The festive season is always the busiest time for bookings. Fortunately, Cathy had, by this time, moved into the camp house. Without her assistance, I would never have survived through this time. Christmas slid past in a blur, and I found myself with still thousands of discovery documents to sort through. It was a miserable job.

On 6 January, I sent the arbitrator a list of procedural documents I needed to support my response, asking him to request these documents from Telstra. By my deadline, however, I was still waiting and had to file my response without them. I was at a loss to know where to turn for help. Again and again, I was faced with the same tactics. Stonewalling and silence. (The documents I requested did eventually turn up two years later.)

However, the arbitrator did respond to a letter I sent asking for more information about the Bell Canada report. In his reply on 23 January 1995, he said:

‘Telecom does not consider it has any further information of relevance in its possession.’ He asked me to respond to this within 24 hours in order to ‘be certain that there is no confusion between the parties as to the documentation which is being sought.’

I did respond, within 24 hours, asking for all the raw data Telstra had concerning the BCI testing at Cape Bridgewater. And heard no more about it. No data, no response of any kind.

My fax account shows that my response left my office and travelled to the arbitrator’s fax machine. Twelve months after my arbitration procedure was completed, I learned that Telstra did not receive this response. Then, on 28 June 1995, I learned that the arbitrator, apparently, had not received the fax either. The newly appointed TIO, wrote to me:

Dr Hughes provided you with a copy of this submission on 23 January 1995, noting that Telecom did not consider it had any further information of relevance in its possession. (The arbitrator) then invited you, within twenty-four hours to respond to Telecom’s submission. Our files does not indicate that you took the matter any further.

This level of displacement is astonishing. What happened to my fax? I might have imagined it simply got lost in the ether. In August 1995, three months after my arbitration, within a bundle of documents sent from the arbitrator’s office, was a copy of the actual letter I sent to Dr Hughes, with the fax-footprint: ‘24-01-1995 – 15:12 – FROM CAPE BRIDGE HDAY CAMP TO 036148730’. Confirming the arbitrator's office did receive it as Front Page Part One File No/2-A to 2-E shows.

Despite this irrefutable proof, the TIO’s office has refused to provide me answers to why this most important BCI letter was never acted on. Had it been, the whole outcome of my arbitration might have been different.

A visit by FHCA

In February 1995, I was visited by people from the financial arbitration unit (we shall call them - FHCA) to assess my financial losses resulting from the failures in my phone service. A representative from Telstra came separately and was delayed by poor landing conditions at the local airport. FHCA was supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater, and I had been led to believe that they provided just such a list to Telstra, but I never saw any documentation myself.

Under the arbitration rules, neither the resource unit, the technical advisory unit or FHCA was allowed to be alone with Telstra or with me. Still, there was not much we could do about the two-hour delay between the time the FHCA and the Telstra people arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived, I saw FHCA’s true colours: everything I said was ignored or negated. FHCA already had fixed ideas about this case. The way they played down my business in front of the Telstra representative clearly indicated what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without me, I had arranged lunch at the camp. However, my offer was declined and the others all adjourned to the Kiosk by the beach, contrary to the rules of the arbitration. What could I do? They all returned later and left together for Melbourne.

Well into 1995, I was still struggling to collate all the FOI documents I was still receiving, so late into the process, into some sort of sensible order. As I understood it, the arbitrator was not accepting any more material in support of my claim. However, I was still being charged for calls that never connected, and I hoped for another oral hearing. I phoned the arbitrator to ask for access to the technical resource unit, for their help in best presenting all this evidence of ongoing problems; I explained that I could not afford to pay my own technical adviser any longer.

The arbitrator told me that the technical resource unit would be visiting Cape Bridgewater shortly and we could discuss the presentation of my material then. Before that visit occurred, however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office: (we shall call them LS Telecommunications), run by a man who had worked for Telstra for 20 years. (DMR Australia) had pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. I had to wonder: did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could DMR pull out of a signed contract?)

Although we have addressed the following Ericsson v Lanes Telecommunications ownership in our Prologue above, it is such an important conflict of interest issues that affected most if not all the COT arbitrations. We needed to again highlight this terrible situation as we have done below.

The TIO’s letter of 16 July 1997, to William Hunt, Graham Schorer’s solicitor advised that Lane was presently involved in a number of arbitrations noting that: ‘the change of ownership is of concern’ and that...’

The first area of concern is that some of the equipment under examination in the arbitrations is provided by Ericsson.…

The second area of concern is that Ericsson has a pecuniary interest in Telstra. Ericsson makes a large percentage of its equipment sales to Telstra which is one of its major clients.

It is my view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit. …

The effect of a potential conflict of interest is that Lane should cease to act as the Technical Advisor with effect from a date shall  be determined. (See exhibit GS 296-a file GS-CAV 258 to 323)

What is just as alarming is: how long was Lane in contact with Ericsson before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In Chapter Seven of the AUSTEL COT Cases Report, dated April 1994, AUSTEL notes my business and a number of other COT businesses suffered major network problems associated with Ericsson AXE equipment. At point 7:40, when discussing my AXE Ericsson problems, it notes:

“AUSTEL recently became aware that Telecom (Telstra) had prepared an internal document on the subject of this AXE fault and on 21 March 1994 sought a copy from Telstra.” (See Exhibit 9 - AXE Evidence File 1 to 9)

This is the Ericsson AXE problems I wanted Lane to investigate while they were at Cape Bridgewater. Only Lane, and perhaps the arbitrator and Telstra might be able to shed some light on the subject to why neither of them would discuss these serious Ericsson AXE problems. My claim documents clearly showed the Ericsson NEAT testing equipment that Telstra used at Cape Bridgewater gave our readings that were impracticable. No one commented during my arbitration on this irritable evidence I provided to the process.

Ann, Graham and I told the TIO we did not want our claims assessed by an ex-Telstra employee and so DMR Group Canada was brought in to lead the process, with Lane merely assisting. As it turned out, however, and contrary to the written agreement given by the TIO, Lid did 99.5% of the assessments. Once more the TIO had misled the COT Cases.

One of the most important statements made by the second appointed administrator to the COT arbitrations John Pinnock, was his statement to Senate Estimates Committee on 26 September 1997 (see page 96 COMMONWEALTH OF AUSTRALIA - Parliament of Australia

stated:

Lane Telecommunications, which is one part of the technical component of the resource unit, has withdrawn from the process as a result of a conflict or perceived conflict of interest after being purchased from Pacific Star by Ericsson Australia, the major supplier of equipment to Telstra, including equipment whose performance is central to some of the claim.

What prompted Mr Pinnock to use the wording in the Senate ‘perceived conflict of interest’ when he had already written to the COT Cases lawyer stating it was his ‘view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit’?

Senator Richard Alston, the then Shadow Minister for Communications, had challenged Ericsson’s AXE equipment. In his question on notice in the Senate on my behalf, only a month before I entered arbitration (see point 25 exhibit 4-B, in file Misleading and Deceptive Conduct File 4-A to 4-L).

The government should have halted the sale of Lane because exhibits 4-E and 4-D in Misleading and Deceptive Conduct File 4-A to 4-L show Ericsson believed the problems with its AXE equipment could represent between 15 and 50 per cent call losses in some exchanges. That is a damning admission.

It’s important we use this Senate segment again even though we need to move forward two years at this point of time in our story to the 24 June 1997, so as we can view the statements made on pages 36 and 38 of official Senate - Parliament of Australia/Hansard records. These show an ex-Telstra employee and then-Whistle-blower, Lindsay White, told the committee (under oath) that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's (Telstra’s Lawyers) area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White -"Can you tell me who, at the induction briefing, said 'stopped at all costs" .(See Front Page Part One File No/6)

Mr White - "Mr Peter Gamble and a subordinate of his, Peter Riddle. That was the introduction process”.

It is clear from Mr White's statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving my claim against Telstra’. One of the named Peter's in this Senate Hansard is the same Peter Gamble who submitted a false witness statement to the arbitrator concerning the failed SVT testing at my premises on 29 September 1994. The same Peter Gamble who on 6 April 1995 arrived at my Cape Bridgewater holiday camp, and together, we collected a representative from Lane from the airport.

The three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who never had problems with his phone), when Telstra documents show otherwise.

While the Lane representative was in Cape Bridgewater, I attempted to raise the incorrect billing issues. But apparently, the arbitrator had instructed Lane not to assess any new claim material. I was angry, for the arbitrator had assured me that if I discovered any new information among FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had worked night after night to have my evidence prepared before the technical team arrived and it was clear to me that this new information clearly supported my allegations. I was so angry, to the point of excusing myself to dry reach in my residence adjacent to the holiday camp.

Neither the Telstra official Peter nor the Lane representative was prepared to comment on this evidence during my arbitration, although I was assured that the matter would be addressed. They left shortly after this, together — and without me, which was in direct breach of arbitration rules. Who knows what private conversations may have taken place between them? On so many counts, now, I was convinced that the arbitration was a sham, with the single aim of ‘shutting me up’ to stop the floodgates being opened." That was how serious the Ericsson problem was.

But after they left I had an idea. The Commonwealth Ombudsman’s Office had been supportive of my allegations concerning Telstra’s failure to supply discovery documents in a timely manner. Throughout this whole awful saga they had, again and again, proved themselves to be impartial and concerned primarily with natural justice.

The Commonwealth Ombudsman’s Office was preparing a report on Telstra’s tardy provision of COT’s discovery documents under the FOI Act, and I guessed that it would keep a copy of every document I had faxed them or they had faxed me. I, therefore, asked them to use my 1800 number for any calls to me because I guessed they would also document any calls they made concerning my complaints. I was betting that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

And indeed, two years later, on 28 February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all communications between my office and theirs, as part of their report to Telstra’s Corporate Customer Affairs Office. This report documented all faxes to and from me and all calls to and from my office — they made 43 calls to my 1800 account.

Bingo! Over this same period, Telstra charged me for 92 calls from the Ombudsman on my 1800 account. In their investigation, the Commonwealth Ombudsman’s Office confirmed these events.

So, it had been a sound idea, not that it helped my case. Telstra has still not refunded me for these wrongly charged calls at the time of writing, nor made any attempt to explain the discrepancy. Nor has this matter been investigated by the TIO’s office. However, the Commonwealth Ombudsman’s data demonstrated that incorrect charging on both my 1800 line and my fax line (in every instance, favouring Telstra) continued for at least 18 months after the arbitrator handed down my ‘award’. Since this incorrect charging was one of the issues I raised in the arbitration, and it was not addressed or included in the ‘award’, I do not consider the arbitration procedure is yet complete. I have written several letters to the TIO’s office about this matter, to no avail.

It was clear from the following statement made by Telstra in FOI folio A00354 that senior management were concerned just how bad their rural network was i.e.

“I understand there is a new tariff filing to be lodged today with new performance parameters one which commits to 98% call completion at the individual customer level.

“Given my experience with customer disputes and the BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”.

A further Telstra FOI document folio P03022 is an internal email dated 23 September noting:

“In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged (this legal firm) to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through (the person I had to register my phone complaints with) for either drafting of the reply from Telecom or for the reply direct from (this same lawyer) as our agent.”(Arbitrator File No/81)

It goes on to say:

“Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through (Telstra’ outside lawyers) with initial acknowledgement by the Region.”

Chapter 8

My Award

The arbitrator was due to hand down his award on 11 May 1995. Before that day, though, came the DMR/Lanes report on the technical losses and the FHCA financial report. The dire content of both these documents prepared me for a very poor final result.

DMR/Lanes report

There are discrepancies between the arbitrator’s and my version of Lane prepared technical consultants report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Arbitrator File No/28)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both technical reports state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as did my own Bell Canada / Cape Bridgewater and Service Verification Testing (SVT-process) at Cape Bridgewater as I have shown elsewhere on this website. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

On 2 May I received the TIO-technical report, dated 30 April 1995, on my business's phone faults over the period of my claim. Outrageously, this report left out more than half my claim documents. Despite numerous requests, the TIO would not investigate why both the arbitrator and the TIO consultants allowed so much of my claim material to be left out or authorised a supposedly independent technical resource unit to ignore claim documents in a legal procedure.

All the incorrect charging issues had been ignored, as had the issues of lost faxes and phone faults that continued throughout the arbitration process, which were even then still losing me business. Nor had they touched the ‘lost’ incoming calls, charged for but not received.

There were some concessions in the report. The TIO consultants did acknowledge that they had not assessed all my claim documents. And they did find a number of my claims to be proven and found against Telstra on a few issues, but to nowhere near the extent that could be reasonably expected based on my claim documents. For just one example, I cite material related to my gold phone, taken from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. (The DMR/Lanes report drew on Telstra’s own data and records.)

2.2       There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

            ASSESSMENT – Service was less than reasonable.

2.8       RCM 1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

            ASSESSMENT – Service was less than reasonable.

2.9      Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

            ASSESSMENT – Service was less than reasonable.

So far, so good. But then the report summarises the situation:

Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightning strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.

ASSESSMENT – A reasonable level of service was provided.

So, while at 2.8, four days was deemed an unreasonable time-frame for repair, in the summing up they find eleven days was reasonable. Moreover, the ‘11 days’ is itself in error. The lightning strike occurred in November 1992 and the fault wasn’t rectified until late January 1993, which amounts to almost three months out of service, not 11 days.

But these are just details. In total, there were four paragraphs dealing with the gold phone, and in each one service was assessed as less than reasonable. And yet the summary assessment was positive. This is not even logical, let alone fair. It is incomprehensible that they gave the gold phone a positive assessment, since they acknowledge at 2.2 that RCM 1 ‘had a track record of problems’. My claim documented more than six years of continuous customer complaints about the gold phone, in diary notes and letters. Ah yes, these were among the documents they did not assess.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, including Telstra’s own documentation, of continuing problems with the gold phone. To no avail. In December 1995, I had finally had enough, and I refused to pay the gold phone account until its faults had been acknowledged. Telstra’s response was to cut the phone off.

FHCA financial report

FHCA’s financial report was even more of a nightmare. It was incomplete; it did not show the workings, which resulted in their findings to downgrade my true losses by as much as 300 per cent in some areas. It was so incomplete, it was difficult to challenge it, for there was nothing substantial to grasp. The errors of logic were painfully elemental.

For instance, although the FHCA report acknowledged that my business accommodated social clubs as well as school groups —

‘An analysis of the clientele of Cape Bridgewater Holiday Camp shows that only 53% were in fact schools’

….(sic) it based its calculations of business losses on the lower end of my revenue base, the $30 per two overnight rates for school groups, compared to the $120 to $160 charged for the 47% that were fully catered social club patrons. Given an approximately fifty-fifty split of school and other groups, this downgraded my losses by a minimum of at least 300 per cent.

Derek Ryan, my forensic accountant, was shocked at its handling of the arbitration procedure and wrote a 39-page report to the arbitrator detailing the failings he had found in it, including actual errors. For a couple of instances:

1.         The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

            Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2.         We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. The main calculation of loss has been considerably understated by an error logic.

            The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.

Derek received no response from the arbitrator, so he contacted the project manager of my claim at FHCA, to ask how he had arrived at his findings. The project manager explained that he had instructions from the arbitrator to exclude a large amount of information from his final report. This meant the so-called independent arbitrator had forced the so-called independent financial assessors to ‘doctor’ their report. Derek wrote to Senator Richard Alston, Minister for Communications and the new TIO, to express his professional disappointment with FHCA. He considered their conduct detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

Six years later, and too late to make any difference, I received from the TIO’s office a copy of a letter dated 13 February 1996, from the Project Manager of FHCA to Mr the TIO, written evidence that the FHCA financial report was incomplete: ‘...I did advise Mr Ryan that the final report did not cover all material and working notes." I very much doubt that the TIO informed Senator Alston of this admission by FHCA.

Instead of the TIO Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against the arbitrators’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations.

However, between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. Mr Pinnock (the administrator) of my arbitration in his letter, of 10 January 1997, in response to my request, states:

I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

I do not propose to provide you with copies of any documents held by this office. (See Open Letter File No 57-C)

It became obvious by this time of the February 1996 letter, that the TIO arbitration resource unit and the arbitrator had collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by Dr Hughes (see Open letter File No/45-E), and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never taken into account by the arbitrator) are also discussed in the Front Page Part Two page.

The Award, May 1995

On 11 May 1995, the arbitrator handed down his award. He found in my favour on a number of instances, but these were based only on old fault reports; he didn’t address the ongoing problems which I had constantly advised him of and which he was obliged by the terms of Austel’s COT Cases Report to address. The award seemed to presuppose that I no longer had any problems with my phone service and that all had been addressed and made up to standard. How he could have come to this conclusion is incomprehensible to me.

The award gave me little over ten per cent of my claim. After I had taken into account all the expenses, I accumulated just to bring the phone problems to the attention of Austel and the Senate and submitting my claim to the arbitrator, I was left with about four per cent.

It was not the case that my claim was inflated. Another accountant, Barry O’Sullivan from Freemans, once treasurer of the LNP in Queensland and now a senator, valued my claim at an almost identical amount.

I am not allowed to speak of the amount of the award, but there are things I can mention. In his award, the arbitrator said he ‘had to take into account the decrease in tourism’ in my area as one of the factors possibly contributing to lost business at the camp. This was outrageous; he was trying to explain my business losses in terms of a decrease in tourism, when all the objective evidence was pointing to an increase in tourism in my area.

Even the FHCA Report recorded an increase in numbers of tourists visiting the Portland region (from 1,396,000 in 1991/92 to 1,565,000 in 1993/94). This increase (which I referred to in my claim documents) was supported by figures supplied by the Department of Conservation and the Environment and by the Victorian Tourism Domestic Monitor. So on what conceivable grounds had the arbitrator decided there had been a decrease in tourism in the area?

Speaking of the FHCA Report, the losses as calculated were taken on board. The arbitrator made his award based on those faulty calculations.

The arbitrator appears to have based his award on the assumption that Telstra’s defence claims were undisputed fact. He says, under the heading ‘Faults Caused By Claimant’:

(c)     Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)     In this regard I have noted for example, the Statutory Declaration by ——, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted a statement by ——, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.

My claim documents clearly indicated that the faults which plagued my business right through my arbitration (1994–95) and for years afterwards were NOT due to operator error. The arbitrator was treating my assertions and Telstra’s assertions completely differently. Of course, the arbitrator could not know when one of us was not telling the truth, and he could only deal with the material placed before him; but he should not have assumed, without investigation, that it was I who was the unreliable party. I find this all the more reprehensible given that I was so often forced to complain of Telstra’s deceptive or underhanded behaviour.

I knew Telstra was lying. Many of the documents cited in this book are evidence of the fact that Telstra knowingly lied in its defence of my arbitration, but at the time I needed it, I did not have the hard evidence. And even when the evidence started coming to hand, it was not accepted — not by the arbitrator, nor by the TIO, and sometimes not even by Austel. They didn’t want to know. But it was their job to want to know.

Just for the record, Telstra’s own archival material contradicts the assertions of the technical officer made under Statutory Declaration in point (d) above. The following internal fault record, in relation to my fax line (the name of the technician has been blanked due to an FOI stipulation) notes:

… rang to advise me had found several problems with the RCM system Mr Smith was previously connected to. The major problem was caused by faulty termination of resistors on the bearer block protection another problem was caused by non modified channel cards, a full report will be submitted by Len in the next week.

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, experienced fax problems when attempting to send faxes to my business. As far as I can tell, the technical officer committed an act of perjury in a legal arbitration process.

Whether the TIO believed this perjured information or not is irrelevant. As administrator to my arbitration, he had a duty of care to give equal attention to my claims and concerns, and this I believe he did not do. While I mainly did not have evidence to hand in the course of my arbitration, once it did come to hand (months or years afterwards through delayed FOI documents), I brought it to the attention of the TIO and urged him to investigate. He therefore has no excuse for not being aware of the unlawful way in which this procedure was conducted and should have convened his own investigations into the matters raised.

I felt completely shattered, but I had to keep going, I had customers to deal with. Six days later, however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. Five days in hospital followed and the final diagnosis was stress.

On my first day home I received a call from the FHCA project manager. He wanted me to know that he was aware things had not turned out quite as I had hoped. He believed I now had to put it all behind me, get on with my life and show ‘them’ what I could do.

I am still wondering who ‘them’ was. And why, really, he had rung. By this point, my appeal time had elapsed. Had he heard about my collapse and had an attack of conscience? During this conversation, he also informed me that the executive manager of my case with DMR was also going to ring me; and so, he did.

The Canadian DMR manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

I was so stunned at this statement that I later forwarded a signed Statutory Declaration of my memory of it to various government ministers. I wrote to DMR in Canada for clarification but received no response. Tantalising possibilities that went nowhere. I was clutching at straws. After so many years and such a high cost, it was hard to let go in the face of such a disappointing and unjust result.

On 23 May 1995, another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means, as Telstra well knew.

Mr Benjamin’s letter to me re late-released FOI documents again confirm that the COT Cases had no chance of ever receiving the justice the government assured us we would have if we went into arbitration with Telstra. This letter from Telstra’s Ted Benjamin, who was also Telstra’s arbitration defence liaison officer, held the position as a TIO Council member. I did not uncover this until the Senate exposed this conflict-of-interest issue during an official COT case FOI investigation conducted by the Senate between September 1997 and March 1999. In fact, the official Senate Hansard available on my website shows Mr Benjamin admitting he had never disclosed his conflict of interest as Telstra's official arbitration officer when the TIO office discussed COT arbitration matters at their monthly meetings.

Mr Benjamin failed to advise the same 26 September 1997 Senate FOI investigation that he had waited in my case twelve months before releasing the FOI documents that would have supported many unaddressed issues raised in my arbitration. On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

However, this was wishful thinking. In the covering letter from Mr Benjamin dated 24 May 1995 under the heading “Your FOI the request of May 1994” includes the following:

“Further documents have recently come to light that fall within your FOI request of May 1994.

Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (Refer to exhibit AS 183 File AS-CAV 181 to 233

It was clear from some of these documents that Telstra was fully aware they had a national network billing software problem. Was this the reason Telstra withheld these relevant billing documents for the whole period of my claim?

Chapter 9

Aftermath

Among the issues not addressed in my arbitration award was that of Telstra’s incorrect charging. Five months after my award came down, Austel visited Cape Bridgewater view the documents that had not been addressed by the arbitrator. These amounted to six bound volumes of evidence I had accumulated to support my case. The Austel people appeared to be quite stunned at the six volumes and commented that they had never seen so much evidence, presented in such detail. (In fact, over the years leading up to my arbitration, I had continually provided evidence to Austel of Telstra’s incorrect charging.) Finally, they left, taking the volumes with them.

Austel allowed Telstra to address the material in the absence of any mediator such as the arbitrator and I was given no opportunity to respond. I wasn’t even officially notified of Telstra’s response, I had to wait for an FOI document, which I received by chance in 2001. The information Telstra had provided to Austel in a letter in October 1995,-), defending itself against my itemised problems, was full of false claims. Had I been given the chance to show the comparison with my data, I could have proved this. But I was not given the chance, and Telstra’s version was privileged over mine with no further investigation. What sort of a way was this to provide justice? I was denied my legal right of challenge. The faulty billings continued.

Meanwhile the daily running of the camp was almost beyond me. Cathy was handling the work almost entirely on her own. All the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, and more importantly, perhaps, I no longer believed any good could come of it. I was in a state of despondency, stewing on my situation. How could this be happening to me in Australia in the 1990s? Wasn’t this supposed to be a democracy? It felt like something out of Kafka.

I decided I had to do something, so for a start, I requested the return of all my claim documents (as per the rules of the arbitration), and waited with growing anger for weeks before deciding to drive to Melbourne and collect them myself in August 1995. I don’t know why I expected to have my request met at this time, in truth, I was spoiling for a fight. And indeed, my documents were not ready, the arbitrator’s secretary, Caroline informed me, and the arbitrator was not available.

I was not polite. I demanded she get my documents at once and reminded her I had put in my request three months before. ‘I am not leaving this office without those documents,’ I shouted. ‘Call the police if you want to, I don’t care. You have my property and I want it back now.’ At last a young lad appeared wheeling a trolley loaded with boxes. He asked me to sort out which were my claim documents; I simply took the lot.

It was a revelation. Among the documents were some I’d never seen before, and they were very interesting, to say the least. By the rules of my arbitration, any information supplied by one party must be automatically circulated to the other party and to the TIO’s legal counsel. Among the material I took from the arbitrator’s office that day, however, was an envelope full of documents and loose papers, none of which had ever been forwarded to me.

A letter from Telstra to the arbitrator had been sent with three attachments, letters sent between Austel and Telstra, between October and December 1994. Telstra wrote:

You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.

The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? I received no correspondence from him at all on this matter.

In its letter of 1 December 1994, Austel had indicated that other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services, and Austel raises this concern in their letter of 8 December:

A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.

In direct breach of the rules, the arbitrator did not forward these letters to me during the arbitration. And, as I have already told, the arbitrator made no finding in his award regarding the substantial evidence of incorrect charging in my claim documents.

In a letter of 11 November 1994 Telstra told the arbitrator and Austel that it would address these incorrect charging issues in their defence. That Telstra failed to do so, and that the arbitrator permitted this, I believe constitutes a conspiracy between the arbitrator and Telstra. Further incriminating documents in this cache I had unwittingly stumbled upon, supported the notion that there was a conspiracy afoot.

The DMR/Lanes report revisited

Although I have addressed the discrepancies in the two varying DMR & Lane reports above, it is essentional I revisit them again: i.e.:

Among the documents inadvertently provided to me by the arbitrator’s office, I found another version of the DMR/Lanes technical report for my business. On the title page of the version I received back in April 1995, the second paragraph consists of one short sentence: ‘It is complete and final as it is.’ The second paragraph on the equivalent page of the arbitrator’s report has more to say: ‘There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.’

Again, in the arbitrator’s copy (on page 3), the fourth and fifth paragraphs state:

One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

Otherwise, the Technical Report on Cape Bridgewater is complete.

This information is missing from my version of the report. Did the arbitrator and DMR/Lanes think I would forget about the billing issues if they didn’t remind me? To discover that DMR/Lanes intended to address the billing issues but mysteriously omitted this from the final version of their report just sealed my conviction that I was the victim of a conspiracy in this arbitration.

And it was here, under the heading ‘Cape Bridgewater Documentation’, I found the astonishing statement I mentioned in an earlier chapter: ‘A comprehensive log of Mr Smith’s complaints does not appear to exist.’

Were they playing games with me? I certainly had provided one! At times my life felt like one huge comprehensive log of complaints. Austel had been stunned at my volumes of evidence. I had images of my supporting documents being tossed into some ‘too-hard basket’ and I was fed up with it. Secure in their government jobs, had they any idea what we COT claimants were going through, what this meant to us?

What is so disturbing about these additions to the two conflicting DMR & Lane 30 April 1995 reports is that all 23 technical finding in each report are identical. When these two identical reports are read in conjunction with the Lane 6 April 1995 report they are likewise the same. What this shows is that Lane not only produced 99.9% of the findings in all three reports they also conveniently failed to address my ongoing billing faults. What cannot be argued after viewing the two DMR & Lane 30 April 1995 reports is that at point 3 in both: it note:

About 200 fault reports were made over December 1992 to October 1994. Specific assessment of these reports other than covered above, has not been attempted. There are 23 faults shown in both reports that were investigated, none were faults registered In the arbitrators award (findings) he notes that my claim was over a 6 and half year period from April 1988 to December 1994. This shows that DMR & Lane assessed less than two years of a six and half year claim. To save arguing which faults which year was assessed and which was not, I again repeat as I have repeated on my webpage as well as in this book. Did Lane only assess less than a third of those faults registered because to have assessed ALL of my which I might add amounted to over 600 for the six and half years (which the government regulator agrees) was one of the worse of all of the COT Cases is because to have assessed this amount of faults Lane would have had to acknowledge the Ericsson equipment was fault ridden. It appears as thought it was best to purchase Lane and all of their computer files of all of the COT Cases complaints so that there is no record in existence of the real problems the government was soon to inherit once the National Broadband Network (NBN) went into play.

Dr Hughes wrote to the TIO on 23 January 1996, noting:

“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:

(a) the cost of responding to the allegations;

(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. (See Open letter File No/45-D)

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 24,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction (as we have stated below). Dr Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

Most of these 24,000 FOI documents, I averaged that amount to be 17,000, were sent to Queensland after they were picked up from my office by Graham Schorer, COT spokesperson, who then had them couriered to COT Cases Ann Garms and Maureen Gillan in Brisbane Queensland. Those documents were all labelled Ann Garms; four of those manila folders were stamped, Gillan. How could Dr Hughes (the arbitrator in my case) and his arbitration resource unit have viewed 24,000 FOI documents when they were never submitted to arbitration.

Had Dr Hughes sidestepped John Pinnock, and instead made full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more that 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.

As if to rub my face in my defeat, months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Some of them I had requested years ago, and would have been most useful in supporting my claim, but by this time, of course, they were of no use any more.

As these documents kept arriving I found it impossible to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, and not only in relation to obvious things like the ‘beer in the phone’ episode. Why, I wondered, did the arbitrator not make any finding regarding all the lost faxes I had reported, both before and during the arbitration process, some of which involved valuable evidence that was somehow lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and Telstra’s defence unit.

How had the arbitrator not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol. How was it not obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth that it was Telstra’s lines that were causing the problems?

In 2001, six years after the fact, I received from the TIO’s office a letter Dr Hughes wrote to Warwick Smith on 12 May 1995.see Open Letter File No 55-A. In this letter, the arbitrator observes that the arbitration agreement was not a ‘credible’ process to have used in my arbitration. If Warwick Smith had passed this letter on to me at the time I could have challenged the arbitrator’s findings. How could an appeal judge rule against the arbitrator’s own advice to the administrator that the rules of the agreement used in the process ‘had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports’? It was terribly frustrating to get this documentary support too late.

However what must be revealed in my story is the possibibility that this 12 May 1995 letter was hacked as the following information shows.

I use the Senate Hansard records of 20 September 1995, showing a very emotional Senator Ron Boswell discussing the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) experienced during our so-called government-endorsed arbitrations, in the previous chapter. It is also most important to raise the following statement made by Senator Boswell, concerning the TIO and his annual report:

“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process, making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’.” (See Senate Hansard Evidence File No-1)

Senator Boswell’s statement that “a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’,” shows, by the date of this Senate Hansard on 20 September 1995, the TIO had already condemned the arbitration process. So why did Mr Pinnock (TIO) and Dr Hughes, eight months later, conspire to mislead and deceive Laurie James concerning the truth of my claims, which were registered with the proper authority, i.e., the president of Institute of Arbitrators Australia?

Living with the knowledge that these lies were told by the very same person who actually had the power to investigate them, but did not, is mind-destroying. Also, mind-destroying for the new owners of my business who purchased my holiday camp in December 2001, is that regardless of them complaining to the Communications Minister’s office my local Federal Member of Parliament, and Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapter One and Chapter Four) they had inherited the same type of phone problems that I had suffered with since 1987, no one re-investigated what went wrong during my arbitration in order to stop the arbitrator from allowing his arbitration resource unit the extra weeks they stated was needed to complete their findings (see Chapter 1 - The collusion continues).

Why did Dr Gordon Hughes bring down his award on my arbitration claims when he was aware:

“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.” see Open Letter File No 55-A).

Why did the arbitrator amend the arbitration agreement for the remaining three COT cases allowing those claimants thirteen more months to access their documents from Telstra (the defendants in all four arbitrations) than he allowed me?

The fax imprint across the top of this letter (Open Letter File No 55-A). is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman (TIO) and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the TIO. to assist me in any pending appeal process and, if not, why was such an important letter deliberately kept from me during my designated appeal period?

If I had received a copy of this letter, declaring the agreement used in my arbitration process was not credible, then of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

How could Dr Hughes even contemplate making a statement like: “…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, let alone decide to include it in his 12 May letter, when he and the Senate had already been warned that Telstra was threatening to withhold further relevant documents from me, simply because I had agreed to assist the Australian Federal Police with their investigations into Telstra’s unauthorized interception of my phone conversations and faxes and, even worse than that level of Telstra treachery, Telstra then actually carried out those threats? And what about the advice that both the arbitrator and Warwick Smith had received on 18 April 1995 (see above), which stated clearly that there had been ‘forces at work’ that had ‘derailed’ my arbitration? This 12 May statement shows that Dr Hughes was quite clearly choosing to protect those ‘forces at work’, regardless of the serious problems that created for me.

Interception of this 12 May 1995 letter by a secondary fax machine:

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;

The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.

The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

Interception of this 12 May 1995 letter by a secondary fax machine is discussed in more depth in our Australian Federal Police Investigations page

And at worse fabricated,

On 15 July 1995, two months after the arbitrator prematurely brought down his findings on my claim, AUSTEL’s previous General Manager of Consumer Affairs, aware that the arbitration process had not addressed my claims concerning the impracticability of CCS7 being used in the BCI testing at Cape Bridgewater. Ms Amanda Davis provided me with an open letter noting: noting:

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July. I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.

The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.

One of the striking about this group is theur persistence and enduring belief that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.

Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minor stroke.

During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.”

After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.

Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies.

Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.

I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time.

Thank you for your interest in this matter, and for sparing the time to talk to Alan.

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was well aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk.’ The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it arriving at the laboratory) was incredibly exciting.

It was already evening time, but in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days. Caught on the back foot and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment, I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

Later, I told the TIO about my exciting find, and how I had I had tried to contact the arbitrator to pass on the news, explaining also why I gave Mrs Hughes the FHCA project manager’s name instead of my own, so as not to alarm her. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wanted to take it further.

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of Dr Hughes, the arbitrator. On 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had a number of complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from Mr Nosworthy, President of IAMA in 2001, who told me Dr Hughes was not a graded arbitrator at the time of my arbitration. In fact, while he was engaged with the COT cases, Dr Hughes sat for, but failed, his grading examination.  Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators. I would like to discuss a number of matters which arise from these letters, including

the cost of responding to the allegations

the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James.

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he actually supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2001, five years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by John Rundell of the Technical Resource Unit to Mr Pinnock (TIO), which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me.

In the letter, Mr Rundell acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’  but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, John Rundell’s letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, Dr Hughes (the arbitrator), who then attached a copy of the letter in his response Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Graeme Ward:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?

Telstra’s Ted Benjamin, who had been in charge of the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September, the TIO Mr Pinnock was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

… the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long.

The Senate investigation proceeded over the next 20 months and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five won a total award of several million dollars between them from this Senate Inquiry, and the other sixteen got nothing.

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: ‘They have defied the Senate working party. Their conduct is to act as a law unto themselves.’

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

Most Disturbing And Unacceptable

On 27 January 1999, after having also read my first attempt at writing my manuscript absentjustice.com, the same manuscript I provided Helen Handbury, Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” (Arbitrator Evidence File No 66)

The Rights Of Citzens

Senator Kim Carr also criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, noting:

“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”

And addressing Telstra’s conduct, by saying:

“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long". (See parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Senator Mark Bishop’s statement

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.

“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (Senate Hansard)

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes, but without the bulk of their FOI requests/evidence. By the Senate not assisting the remaining 16 to obtain their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e, his fellow Australian citizens.

Why didn't the Australian government pressure Telstra to compensate all of the 21 COT Cases and not just the five COT cases Telstra withheld or destroyed their requested arbitration documents? It is clear from the following Google link (see What are the risks of hiding evidence during legal discovery?)

I reiterate why were only 5 of the COT Cases were provided with their previously withheld arbitration documents and not the remaining 16 COT Cases. Those five litmus test cases also received millions upon millions of dollars in punitive damages for having suffered such a terrible arbitration. When those same 16 COT Cases received no compensation

Telstra's Unlawful Witholding Of Documents

Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination by the Commonwealth were fully investigated.

At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56).

Senator Len Harris was distrurbed that A fair resolution of those sixteen COT cases had never been resolved (see In the office provided for me, that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.

The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 40.40 pm".

This was the reason I phoned Detective. Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him. Mr Penrose responded with words to the affect that:

‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’.

Chapter 10

And the faults continue

The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.

The missing faxes

In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.

On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit in the course of my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration I have been trying to get this issue addressed.

I copied on to Mr Rothwell a number of faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.

On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?

I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.

Points 6, 7.2 and 25 of the FTAP rules state:

6.    A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.

7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.

25   Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place, and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.

On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.

We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

Still trying to get my original claims addressed

On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the course of the oral hearing, ‘I don’t think we need any further examples.’

Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to actually present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.

In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.

Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’

Me: ‘No, I will leave it in the claim because —’

Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?’

Me: ‘Right, Okay, yes, all right.

Arbitrator: ‘So you want to leave the allegation in?

Me: ‘I will leave the allegation in.’

But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.

If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?

An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.

After three more years of telephone complaints after my award was handed down — of line-locks, dead-line problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed a number of issues raised in my original Letter of Claim. They considered my evidence sound and took it away with them. In their notes of this meeting they said:

… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.

Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.

Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, in order to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO  was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed.

In July 1998 seven letters passed between the TIO office and me,  all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived, or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:

The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.

There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I have to wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.

In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter,  the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996, and found that the TIO had added a handwritten note at the bottom of this letter, stating:

‘These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.’

I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied I can take them and the arbitrator to court, well aware that I do not have that sort of money.

I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.

Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.

And Telstra management certainly knew this four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.

Finally I have had enough

In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.

From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:

Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.

In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:

After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up.

I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems similar, to the ones I had experienced but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:

The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.

One operator Denis Carr said he had been told Telstra was rectifying the problem.

I hope he wasn’t holding his breath.

Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:

The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.

‘Telstra admits there is a fault and they are trying hard to solve it,’ he said.

But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:

As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business.

Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.

Back to the politicians

In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would look into those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.

In July 2005 Senator Joyce agreed to add his vote to ensure the sale of Telstra went through the Senate, but only on the condition that the unresolved arbitration issues of the COT cases were properly and officially dealt with. But, once he had cast that crucial vote, the Minister for Communication Helen Coonan did a back-flip on her word and the COTs were shafted yet again. Senator Joyce was livid, and for a year demanded the justice he had paid for, but in vain.

In March 2006 Minister Coonan did, however, agree to a government process in which public servants would conduct a commercial assessment. Only two (out of what were then fourteen) COT cases agreed to this process, and I was one of them. The other twelve had no illusions that their claims would be truly independently assessed.

To support my claim that my arbitration had NOT rectified my phone and faxing problems the Hon. David Hawker, then Speaker in the House of Representatives, submitted a statutory declaration by Darren Lewis, the new owner of the business:

After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed whoever had installed the wiring had done an unprofessional job. Internal Telstra documentation provided to me by Alan Smith confirmed Telstra themselves had done the wiring. Jenny and I noticed that although our incoming call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems.

Telstra informed us we had what is commonly known in technical words as a line in lock-up rendering our business phone useless until the fault is fixed. It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and so close to the Beach Kiosk (junction box) this could very well be part of the problem ... It was on this note that the technician informed me that although it was a backward step he was going to investigate the possibility of moving the business off the optical fibre and back onto the old copper wiring.

Despite such strong confirmation of my case, Senator Coonan wrote to me on 17 May 2007 regarding her representation to Telstra on my behalf:

Telstra is not prepared to undertake an alternative means of pursing this matter. I also appreciate the depth of feeling regarding the matter and suggests you consider whether any court proceedings may be your ultimate option.

I can only wonder at the power Telstra wields: it seems impregnable.

The sad fate of Darren Lewis

On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:

“Mr & Mrs Lewis claim in their correspondence attached:

That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.

That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76 and D-Lewis File 1-I)

Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later?

Darren Lewis was so angry with this Telstra employee that he took a number of photos of the actual wiring that ran from Telstra’s pit to his residence and his office (the same office that was mine from 1988).

As part of his plans to renovate the house, Mr Lewis had begun to prepare for a heating system to be installed under the house but, in the process, as he sunk his shovel into a water-soaked area, he accidentally cut into a Telstra cable that was only buried half a shovel deep. Water from an overflow downpipe from the main accommodation block had been running off and collecting over the Telstra cabling that had obviously not been buried deep enough (see the following photos taken by Mr Lewis at the time).

According to the AUSTEL’s records, the Telstra cable was installed in 1991 and, as this photo below shows, it was this faulty installation that led to the cable itself becoming waterlogged. Yet, on 6 April 1995, during my arbitration, when I begged Telstra and the arbitration’s so-called independent technical consultants to run a series of tests to all three of my service lines and inspect the Telstra pit outside the office to ensure that the Customer Access Network (CAN) was up to the proper network standard, my request was refused outright.

Mr Lewis took 22 photos that day, showing just how poor Telstra’s workmanship was when the cable was installed. The open pipe was full of water and water had run down the pipe to the u-bend. After Telstra installed new cabling, Darren advised the TIO, the number of incoming calls increased by more than 100 per cent: this is confirmed by CCAS data.

So what was my arbitration about? Shouldn’t the TIO and the technical consultants he appointed have investigated why I was still registering ongoing telephone problems? It certainly appears the real reason for the way the arbitration was run was to ensure that the Telstra Corporation could continue to conceal all the problems created by their ailing copper wire network, and really, all the arbitrator had to do was grant us an award to compensate us and cover up the rest, exactly as it has been ever since, for the past 20-plus years.

On 1 September 2004, Darren Lewis’ (who purchased my holiday camp in December 2001) wrote to our local MP, David Hawker, stating:

“I must also reiterate my thanks for the pressure you put on Telstra in late 2002 – I believed it was this that finally forced them to re-wire the kiosk at the camp and disconnect the faulty telephone alarm bell which local Telstra employees believed could have been causing some of the problems with incoming calls. Although the incoming calls increased dramatically one the re-wiring had been done, the trauma of the first year we were here has not gone away.”

Telstra waited until 10 months after I had sold the business before they transparently investigated the ongoing telephone and faxing problems I raised during my actual arbitration and for six years after it was declared over. If this isn’t discrimination of the worst possible kind, then what is? Did Telstra make a deal with the arbitrator to ensure that he would only investigate old, historic, anecdotal phone and faxing faults and totally ignore any ongoing problems in the rural network that, if they were proved to exist, would open the floodgates and allow other rural customers to sue Telstra?

When I showed the Hon David Hawker MP that the arbitrator only addressed old issues and none of the issues that continued to affect other Cape Bridgewater customers and me, he arranged a meeting in Parliament House, in Canberra, with Senator Alston, the then-Minister for Communications. The senator’s staff agreed to investigate a 60-plus page report (and attachments) that I provided to them. This report was eventually returned to me – without the attachments – but with a covering letter from a Paul Fletcher, refusing to address the report at all. This bureaucrat is now the Hon Senator Paul Fletcher who, from 2014 to 2016, has been assisting the present Prime Minister of Australia with the problems associated with Telstra’s ailing copper wire network that has been the root cause of the slow rollout of the NBN.

On 26 May 2019, Paul Fletcher became Australia’s Minister for Communications and the Arts (see  Media Release: Fletcher 'deeply honoured' to be appointed Minister for Communications, Cybersafety and the Arts).

As the new Minister for Communications,   I can only hope The Hon Paul Fletcher will now look at the evidence I provided Senator Alston in September 1995, and the more updated version of June 1996 and the more recent information now exposed on absentjustice.com, especially as numerous senators found our COT arbitrations were not conducted lawfully.

If the TIO had allowed his appointed arbitration technical consultants to properly investigate the COT cases, as they should have, then that corroded copper wire network would have been uncovered and investigated in 1994, instead of in 2012, and the current Telstra shareholders would not be left picking up the tab. No wonder the Hon David Hawker was livid when he discovered that Darren Lewis was still having phone problems in November 2006, as our Main Evidence File No 3 shows.

I provided two photos Darren Lewis took to Senator Len Harris, showing him how deep the cabling was running: 50 meters along a trench less than half a shovel deep.

After seeing these photos, I employed a professional video production company to produce a video showing how the actual wall sockets looked when the casing was removed. I still have copies of that video but, in April 2016, when we tried to transfer it to a CD, we discovered that the quality was not good enough for use on the internet.

Back in December 2002, when the video was produced by Noel Waugh (Video Production of Portland), we sent a copy to the office of the then-Minister for Communications, Senator Richard Alston. Like most bureaucrats working in government departments, those who worked in Senator Alston’s office did not understand the relevance of the video in relation to my claims of ongoing problems and nor did they understand it showed how incompetent some Telstra employees were, particularly in rural Australia. It was, after all, Telstra’s incompetence, coupled with the fact that no one in Telstra really cared about the suffering of telephone customers, especially those with telephone-dependent businesses, that ruined the lives of so many small business operators.

If the arbitrator had conducted my arbitration according to the ambit of the Commercial Arbitration Act 1984 and investigated ALL of my ongoing telephone and faxing claim documents, then Darren and Jenny Lewis (as new owners of my business) would not have suffered. I was forced to sell my business because the TIO and Telstra did not transparently investigate my claims. Both the TIO and Telstra failed to divulge their investigation conducted on 14 January 1998, after my arbitration, showing it was apparent the phone problems would indeed continue.

If the TIO did carry out an in-house investigation into my claims some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive because they were lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it was deplorable for the TIO to not respond to my interception claims. Deplorable because, either way, regardless of whether missing documents were intercepted and not forwarded on or were lost because of faults in the network, ultimately certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as the Federal Labor Government when they endorsed our arbitrations.

On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:

“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.

“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.

“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.

“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …

“The technicians then in a hookup consultation with outside office guru’s  did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect  the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)

Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, with Telstra’s senior management who continued to deny there was ever a phone problem affecting their businesses. It was these type of denials by Telstra employees like Tony Watson after the COT Cases had spent hundreds of thousands of dollars in arbitration fees after the government had promised would be fixed as part of the government endorsed processes that caused so much damage.

I provided Ms Howard with a letter dated 21 March 1999 and addressed to the Casualties of Telstra, C/- The Small Business Show, Channel Nine. This letter suggests others who ran afoul of Telstra had suicided:

“I watched your show on Sunday morning carrying the piece on Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc.

“I started a lawsuit 2½ years ago against Telstra for breach of contract during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove.

“As a direct consequence I have lost my home, separated from my wife, lost hundreds of thousands of dollars and a twenty year old business and fought a very dirty legal battle. My other partners have had to sell or re mortgage homes and one has retired without any of the security he should have had from ownng  a business for over twenty years.” (See Home Evidence File No/7)

I also provided another letter received by me, dated 8 November 2002, from a man in South Australia, stating:

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you  business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. …

“During this period of time I was on a call talking to a councilor . She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call. …

“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or  business shut down.” (See Home Evidence File No/15)

I believe Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, enabling the person on duty to listen in on those conversations. After reading the letters I supplied, letters Ms Howard drew up a Risk Management Plan for Darren to use (AS-CAV Exhibits 589 to 647 - See Exhibit AS 629), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife but also with me as well as with Portland Health.

And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated because to do so would prove just how delusive and undemocratic my arbitration process was. The Lewises’ lives, like mine and my partner’s, were insignificant as long as Telstra’s network deception remained protected … at all costs. (see also Chapter 4 The New Owners Tell Their Story and  Chapter 5 Immoral - hypocritical conduct).

A number of politicians from both sides of the house, I am sure, are aware Absent Justice My Story is not a site that attacks the government with vexatious accusations of malice. The website was set up in January 2015, 20 years after I tried every conceivable way to prove my claims: that NONE of my ongoing billing faults, raised with the government in 1993 and 1994 by my then Federal Member of Parliament the Hon David Hawker MP and Shadow Minister for Communications the Hon Richard Alston, were addressed during my government-endorsed arbitration of 1994. I have always maintained, as have many government ministers from both sides of the House, that the first four COT case arbitrations were facilitated in order to fix the COT cases’ telephone problems, as well as to award damages if the claimant proved his claims. The arbitrator Dr Hughes found Telstra was indeed deficient in its supply of a phone service for the whole period of my claim.

However, TIO records show it was warned by AUSTEL, on 3 October 1995 (five months after Dr Hughes brought down his award), that NONE of my ongoing billing telephone faults raised in my arbitration were investigated or addressed during my arbitration. The TIO (the administrator of my arbitration) did nothing to transparently investigate why the arbitration process did not address these still-ongoing billing problems, even after being further advised, on 15 November 1995, by the TIO arbitration project manager John Rundell that NONE of my arbitration billing faults were addressed by the arbitrator.

FOI folio I00271 and I00265

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration; I can provide, on request, government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

“The TIO have now raised a level 1 complaint on behalf of Mr & Mrs Lewis. The TIO have specifically mentioned in their correspondence that the TIO have previously investigated a number of complaints raised by the previous account holder for this service in which similar issues were raised.”

The blanking out of my name does not hide the fact that I was the previous account holder of that telephone service.

The second Telstra FOI folio, I00265 (File N0 3-B), dated 24 October 2002, states:

“David Hawker MP has written to Senator Alston on 10 October and included a 3 October letter from Darren and Jenny Lewis. This 3 October letter has been cc’d to the TIO but doesn’t seem to have made its way into Telstra yet. Will follow in Cicero and respond accordingly. Hopefully, the TIO will become involved and that will take the Minister and Member out of the equation.”

I highlight FOI folio I00265 because it is a good example of how valid claims can so easily be hidden from any Minister in government if the TIO becomes involved. It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

Numerous other documents on my website clearly show other government Ministers apart from The Hon Senator Richard Alston and The Hon David Hawker MP have been misleading and deceived over the validity of my claims that my arbitration did not address my ongoing telephone and faxing problems that in the end, left me little option but to sell my holiday camp.

I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations. I provided this Risk Management Plan (AS-CAV Exhibits 589 to 647 - See exhibit AS 629) to the Australian Government as well as the Administrative Appeals Tribunal during my 2008 Freedom of Information hearing – No V2008/1836.

About six weeks after Ms Howard’s visit, Darren came to tell me he was considering selling up, but was worried about what to tell prospective buyers about the telephone problems. He accepted that when I had sold the business to him I had firmly believed that Telstra would fix the problems once I was no longer involved, and he agreed that he had also expected this to happen. But he felt now that he could not sell the business without divulging the continuing nature of those problems.

The Portland Coastal Real Estate Agency recorded two offers for the Camp, of $1,300,000 in April 2007 and $1,200,000 in June, before Darren withdrew the property from the market. Technical guru Brian Hodge, who had previously worked for Telstra for 29 years, inspected the place and provided Darren with a report in July 2007, which noted that the faults were actually getting worse.

Towards the end of 2008 Darren was before the Federal Court because of overdue taxes and was filing paperwork for bankruptcy.

In 2008, Darren Lewis wrote to the Federal Magistrates Court stating:

I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:

Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp

Two s/comb transparent bound documents titled Exhibits 1 to 34

Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);

Three CD Disks which incorporated all of the submitted material.

“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland. (See My Story Evidence File 12-A to 12-B)

Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.

As I have reported throughout this webpage numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.

As Darren’s letter shows, I helped him prepare his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater reports to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business.

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration. Government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

“The TIO have now raised a level 1 complaint on behalf of Mr & Mrs Lewis. The TIO has specifically mentioned in their correspondence that the TIO has previously investigated a number of complaints raised by the previous account holder for this service in which similar issues were raised.”

The blanking out of my name does not hide the fact that I was the previous account holder of that telephone service.

The second Telstra FOI folio, I00265 (File N0 3-B), dated 24 October 2002, states:

“David Hawker MP has written to Senator Alston on 10 October and included a 3 October letter from Darren and Jenny Lewis. This 3 October letter has been cc'd to the TIO but does not seem to have made its way into Telstra yet. I will follow in Cicero and respond accordingly. Hopefully, the TIO will become involved, and that will take the Minister and Member out of the equation.”

I have highlighted FOI folio I00265 because it is a good example of how valid claims against Telstra was so easily be hidden from the relevant Minister in government, i.e., if the TIO became involved.

It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis.’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

These were the same ongoing telephone faults that the arbitrator failed to investigate during my arbitration.

In August 2009 Darren and Jenny Lewis walked off the property as the result of a bankruptcy court order. The camp was sold for less than $600,000, even though the local real estate broker could have sold it two years previous for $1.2 million dollars (refer Cape Bridgewater Eco-Tourism Venture -)

Chapter 12

Summing up the years

There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.

Over the same years, the COT members have sent updated information supporting our various claims to Warrick Smith, Richard Alston, Amanda Vanstone and other appropriate ministers, officials, politicians and senators. I have provided documented proof, again and again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.

I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence, I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’ (See page 99 COMMONWEALTH OF AUSTRALIA - Parliament of Australia.

In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination.The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:

Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date …

No one has requested them.

I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?

But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:

I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes.

The last I heard from the IAMA Ethics and Professional Affairs Committee was in 2014. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’

One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us.

We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.

When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?

If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging, I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all of these issues my claims were effectively silenced — by being ignored.

Conflict of Interest

No author should write only part of a story based on fact while leaving out a relevant part of the story because it might be seen as detrimental to another person in the story. A full factual account of what happened during the COT arbitrations is necessary: both the good and the bad.

So, I must raise a conflict of interest that clearly affected the whole outcome of the first four arbitrations. I felt it was best to leave this issue to last.

What has been decidedly the hardest decision for me to make since I began telling the COT storey is exposing the conflict-of-interest issue between Graham Schorer (Golden Messenger) and Dr Gordon Hughes. For Telstra (the defendants in those four arbitrations) to have allowed this the conflict-of-interest issue with existing before the four complainants signed the arbitration agreement in April 1994 suggests that Telstra saw an advantage to their defence by allowing it. I only uncovered this conflict-of-interest issue in 2008, after Graham Schorer asked me in August 2006 to write several reports concerning the COT story.

After I had exposed to Graham/Golden how his conflict-of-interest with the arbitrator had benefitted him and not the other COT Cases and that this conduct by Dr Hughes was more than questionable and had the senate knew about this conflict of interest issue at the time of their 1997 to 1999 (Freedom of Information) investigations, this would have been enough for the senate to instigate a full-blown Senate hearing, and he wanted to the right the wrongs by submitting to the senate the reports I was writing. This providing my reports to those senators he had met in Canberra would help him to live with what he had done. This was to be his redemption. He felt ashamed for having benefitted from his previous association with Dr Hughes, and the other COT Cases had not.

Some years into my research regarding Graham’s involvement in the COT arbitration’s I uncovered Dr Gordon Hughes had been assisting Graham/Golden in his Golden Messenger business enterprise as well as acting as his Federal court lawyer during the early part of Graham’s previous 1990 to 1993 court action against Telstra. These were the very same technical issues he was appointed by the TIO in 1994 to assess as arbitrator in all four COT claims against Telstra.

When I asked Graham to please explain why he had concealed this conflict-of-interest from me before arbitration as well as before commissioning me to write the COT story; he wrote the following document exhibit GS 565 file GS-CAV 459 to 489 as a compromise if I would continue with the project at hand.

For the second time within days, Graham again confided in me his sense of guilt for not exposing this conflict of interest during the period the Senator was investigating his Freedom of Information FOI matters which awarded him 3,600 million dollars. He felt guilty as the COT spokesperson for not having done more for the remaining (sixteen COT Cases who also had the same FOI problems with Telstra during their various litigation processes). I reiterate his paying for me to expose this whole dreadful saga was his way of righting his wrongs for not having done more as the COT spokesperson.

It is as important to look at this conflict-of-interest issue from the perspective of the other COT claimants as it is to look at it from Graham’s perspective because, as Graham’s earlier legal advisor in both his business ventures and his Federal Court Telstra matters. Because if Dr Hughes, as Graham alleges, he did know about the concealment of important documents Graham/Golden litigation against Telstra in the Federal court from 1990 to 1992, then we three COT Cases Ann Garms, Maureen Gillan and I were entitled to have been briefed on this matter. The fact that Telstra and the Establishment got away with this during a federal court action is one thing, but for Dr Hughes and/or members of the legal firm to which Dr Hughes was a senior partner appear to have also been party to this concealment brings a massive cloud over the COT four arbitration just three years later, when Telstra concealed similar documents from all of the four COT cases during their arbitration, in which Dr Hughes was the arbitrator.

Possibly even worse for the other two COT Cases and I is that Dr Hughes allowed Graham/Golden an extra three or more years longer to access their documents from Telstra, over and above what he allowed us, three COT claimants, even though the official arbitration rules did not permit this. Dr Hughes only allowed me one extra week to access my documents from Telstra shows how this conflict of interest tainted the whole arbitration process.

Before the government communications regulator, AUSTEL (now AMA) endorsed Dr Gordon Hughes as the independent arbitrator they had a duty of care to advise the COT Cases in writing that Dr Hughes was not an experienced arbitrator and had not been graded by the Institute of Arbitrators Australia to perform such complex arbitrations as the COT four processes. AUSTEL did not. Could you inform us of this fact?

Dr Hughes himself also failed his duty of care as a pending arbitrator to COT Cases Ann Garms, Maureen Gillan, and me in writing as per the rules of the Victorian Arbitration Act that he had a conflict of interest with the fourth claimant Graham/Golden. And to add further salt to the COT Cases future wounds was that Graham Schorer, in his capacity as COT spokesperson failed to disclose to us three other COT Cases (refer exhibit GS 565 file GS-CAV 459 to 489) that we should not send arbitration related faxes to Dr Hughes’ Melbourne office after the closing of business each day; otherwise, they may not arrive at their intended destination.

Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994, six of my claim documents did not reach the arbitrator's fax machine. Yet, I was charged on my Telstra account for those six faxes. Why was this matter not investigated? NO one from the arbitrator’s office or the TIO’s office allowed me to amend my claim so that the not received claim documents could be valued as part of my arbitration process.

Why didn’t Dr Hughes (as the arbitrator to my case) also explain to me as he did to Graham Schorer (refer exhibit GS 565 file GS-CAV 459 to 489) that my 23 May 1994 faxed claim documents might be in his Sydney office? Did Dr Hughes believe by exposing this faxing problem with his Sydney office halt the arbitration process in my favour? Was Dr Hughes worried by exposing to me the flaws in his own two offices concerning the possibility this is where my other lost faxes ended up this admission would bring an end to him remaining the arbitrator to the COT arbitrations?

Firstly, had Graham (as the COT spokesperson disclosed to the COT Cases before, we signed our arbitration agreement, we would have been in our rights to demand Dr Hughes supply an efficient faxing system throughout our arbitrations.

Secondly, we could have used this faxing problem between Dr Hughes Melbourne and Sydney office to support any arbitration appeal in the period allowed in our arbitration agreement.

It is important to link these unaddressed lost arbitration faxes to both my case and that of Ann Garms (now deceased), because it is well written between us, lost many faxed arbitration-related documents.

Ann Garms (one of the other COT Cases) spent over $600,000.00 in her arbitration appeal in the Supreme Court of Victoria against Dr Hughes. Ann might have had a more favourable outcome of this appeal which she lost had she and her lawyers known of Dr Hughes admission to Graham Schorer before the commencement of our four arbitrations.

Please visit our website for more stories of injustices experienced by other Australian citizens who have only ever wanted the truth to be exposed concerning their stand against the bureaucratic bubbling by the Australian justice system.

AS - CAV 1 to 47 - AS-CAV 48-A to 91 - AS-CAV 92 to 127 - AS-CAV 128 to 180 - AS-CAV 181 to 233 - AS-CAV 234 to 281 - AS-CAV 282 to 323 - AS-CAV 324-A to 420 - AS-CAV 421 to 469 - AS-CAV 470 to 486 - AS-CAV 488-A to 494-E AS-CAV 495 to 541 -AS-CAV 542 to 588 - AS-CAV 589 to 647 - AS-CAV 648 to 700 -  CAV Exhibits 701 to 756 AS-CAV 765-A to 789 - AS-CAV 790 to 818 - AS-CAV 819 to 843 - AS-CAV-923 to 946  AS-CAV 1150 to 1169 - AS-CAV 1069 to 1102 - AS-CAV 1103 to 1132 AS-CAV-1002 to 1019 - AS-CAV-996 to 1001

The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law see > www.legislation.+vic.gov.au/Domino/Web-Note.

APPENDIX A

By using this appendix as the conclusion to our COT story it has allowed me to add to the story two important issues without breaking the flow of the story.

On 26 July 2008, thirteen years after the arbitrator disallowed his technical consultants the extra weeks, they advised him was needed to fully address all of my arbitration claims these same unaddressed issues were again raised during my first 2008 Administrative Appeals Tribunal (AAT) Freedom of information (FOI) hearing (No V2008/1836) I provided Mr G.D. Friedman, Senior AAT Member hearing my case evidence showing the government communications regulator either deliberately or by not understanding the law as they should have provided the defendants of my arbitration namely Telstra and advantage that crippled any chance of me conclusively proving to the arbitrator the phone problems raised in my claim were still affecting the viability of my businesses endeavours.

On 26 September 2008, in my correspondence to Ms Regina Perton, Administrative Appeals Tribunal I noted:

"I am sure you are aware, the Trade Practices Act directs companies to withdraw faulty goods or services immediately upon becoming aware of problems related to those goods and/or services and, at the same time, to bring the problems to the notice of their customers and the Australian public in general. If they do not follow these directions they are in breach of the Trade Practices Act.

ACMA knows that, on at least two occasions, Telstra used the regulator to 'rubber stamp' two technical reports that Telstra knew were more than just flawed but which were then provided to the arbitrator during my arbitration. ACMA has not published their knowledge of this matter.

On 16th October 1995 the regulator allowed Telstra to address one of the billing issues from my arbitration, outside the legal arena of my arbitration. Since my arbitration was a private matter between Telstra and me. the regulator did not have the authority to allow arbitration matters to be addressed in such a confidential way, outside the arbitration process, thus disallowing me my legal right under the Commercial Arbitration Act 1984, to challenge the false information that Telstra knew was false and misleading".  (AS 1107)

Transcripts from my Melbourne Administrative Appeals Tribunal hearings (Respondents - ACMA) on 3 October 2008 (No V2008/1836) show that I maintained that my Freedom of Information FOI applications to the Australian Communications Media Authority (ACMA) should be provided in the Public Interest and therefore free of charge all of the requested information both Telstra and AUSTEL (now ACMA) withheld from me during my government endorsed arbitration process.

This 2008 hearing was considered by Senior AAT Member Mr G D Friedman and it is now apparent that Mr Friedman was not aware that the Government solicitors (AGS) and ACMA had based their current AAT defence of my claims on totally inaccurate Department of Communications Information Technology and the Arts (DCITA) COT archival documents, including the sanitised, public AUSTEL COT report released in April 1994, none of which included the true (and very adverse) findings that AUSTEL had originally reached in relation to Telstra’s dealings with me (refer AUSTEL’s Adverse Findings).

On 3 October 2008, Mr G.D. Friedman, hearing my case against ACMA (No V2008/1836) stated to me in the public gallery:

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it. Yes.

I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the - not this matter before me, but the whole - the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it's important enough".

APPENDIX B

During my second AAT hearing (No 2010/4634) which ended on 26 May 2011, I had raised prior to that date an example of where Ericsson equipment not just their AXE Portland telephone equipment but their NEAT testing equipment used at the unmanned RCM Cape Bridgewater switching exchange prior to and during my arbitration. My claims to ACMA and the AAT were that this Ericsson faulty equipment which often recorded incorrect and impracticable test results had knowingly been used by Telstra so as to cover up the many problems my business and other Telstra subscribers were experiencing in our region.

During many months that both parties submitted evidence for and against I provided conclusive proof using government records namely AUSTEL/ACMA’s own findings from their April 1994 COT Cases Report that it was uncovered just how bad these Ericsson faults were.

I was also able to conclusively prove in writing (which I did) showing that the findings in AUSTEL’s own April 1994 COT report on page 157 which discusses the Ericsson testing process which AUSTEL unknowingly and/or unwittingly used to support their findings in this government report had been grossly impracticable. This report and its findings was submitted by Telstra to Dr Hughes (the arbitrator) as evidence that Telstra most recent testing at Cape Bridgewater in 1993 and again in 1994 met all of AUSTEL’s specifications when this was not the case.

Regardless of my evidence provided to ACMA and the AAT in 2011, ACMA has still not provided me the Ericsson AXE report. In fact, AUSTEL notes after having accepted in 1994 that in some incidence ongoing AXE fault could have caused problems for my business reported in their April 1994 COT report at point 7.40:

“AUSTEL recently became aware that Telecom had prepared an internal document on the subject of this ACXE fault and in 21 March 1994 sought a copy from Telecom.”

I again reiterate, nether Telstra nor the government has ever released this AXE report to me under FOI regardless of the thousand of dollars my two AAT hearings personally cost me.

At the final oral hearing ON 26 May 2011 Mr G.D. Friedman, Senior AAT Member noted:

"Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as it will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia,

Mr Smith said today that he had concerns about the equipment used in cabling done at Cape Bridgewater back in the 1990s. He said that it should - the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used".

During this second AAT hearing, I again raised the telephone problems that had affected my business from before my arbitration from 1988 to 1995, stressing that the arbitrator had failed to investigate why my phone problems were still affecting the viability of my business endeavours, which therefore allowed them to continue for a further eleven years after the end of the arbitration.

Also, during this second AAT hearing, I raised 2006 statutory declaration prepared by the new owners of my business concerning the problems they were having with the optical fibre (see Main Evidence File No 13) and the advice from Telstra to move Darren and Jenny Lewis of the fibre back onto the copper wire network.

To support my claims that in some case where optical fibre had been used in moisture-prone locations like Cape Bridgewater (similar to that reported by Darren and Jenny Lewis), I submitted Telstra FOI folio A00253 document (refer to Bad Bureaucrats File No/16) dated 16 September 1993 titled Fibre Degradation which states:-

“Problems were experienced in the Mackay to Rockhampton leg of the optical fibre network in December 1993  Similar problems were found in the Katherine to Tenant Creek part of the network in April this year. The probable cause of the problem was only identified in late July, early August. In Telecom’s opinion the problem is due to an aculeate coating (CPC3) used on optical fibre supplied by corning Inc US. Optical fibre cable is supposed to have a 40 year workable life. If the MacKay & Katherine experience are repeated elsewhere in the network, in the northern part of Australia, the network is likely to develop attenuation problems within 2 or 3 years of installation. The network will have major QOS problems whilst the CPC3 delaminates from the optical fibre. There are no firm estimates on how long this may take.

Existing stocks of Corning cable will be used in low risk / low volume areas.

Were the citizens of Australia entitled to be advised by the Australian government, before it sold off the Telstra network, that, e.g., the optical fibre with CPC3 coating, supplied to Telecom/Telstra by Corning Inc (USA), was installed in their area? How many people in Australia have been forced to live with a subpar phone system, i.e., a known poor optical fibre that Telstra should NEVER have installed? How many businesses have gone up against the wall due to Telstra’s negligent conduct of knowingly laying their existing stocks of Corning cable in locations that Telstra believed were low risk/low volume areas?

Chapters one to three in our Tampering with Evidence page show Telstra was also prepared to re-deplore some 450,000 faulty TF200 telephones to locations where Telstra thought moisture was non-existent. The decision-makers regarding where Telstra installed these moisture-prone phones were certainly not trained in meteorology. I doubt that Telstra or the government advised these TF200 customers, when Telstra was sold off, that if they were experiencing phone problems that this was no longer Telstra’s problem or the governments.

We suggest that any Regulator and or agent of the Federal/Crown, who possessed knowledge of the nature of these unlawful acts and events by Telstra during the AUSTEL facilitated COT arbitration procedure, and specifically concealed these acts by not broadcasting to the appropriate law enforcement agencies, would be acting outside of the law, and would be engaging in prima facie abuse of office, and obstruction of justice.

AS stated above, all events quoted in this publication are supported by copies of the original documents which support the statements being made on this website. Hundreds and hundreds of further documents are being edited to further assiting me in my attenmpt to prove to the government corruption in Australia's seat of arbitration is real or was real between April 1994 and March 1999.

History – Casualties of Telecom (COT)

My name is Alan Smith; this is my story and that of other business owners who have had significant issues with Telecom, now Telstra. We became known by the acronym COT – Casualties of Telecom.

Until the late 1990s, Telecom was the name of the Australian government’s telephone network and communication carrier. Telecom was privatised at the end of the last century and became Telstra. Under its government auspices, Telecom held a monopoly on communications, but their mismanagement on all levels let the network fall into disrepair and resulted in grossly deficient service to customers who depended on Telecom to run their businesses and provide customer services.

A government-endorsed arbitration process was set up for the business owners to rectify their communication problems and fix the faulty telephone services. However, it turned into an uneven battle between the COT cases and the government backed Telecom which we, the four claimants could not win. Our ongoing telephone and fax problems were compounded as our costs and losses increased because our deficient services were not repaired, nor our concerns directly addressed as they should have been.

Our personal integrity was attacked, business reputations undermined, and crimes were committed against us in order to ruin our livelihoods as Telecom sought to avoid responsibility for their own ineptitude and mismanagement by directing blame onto these small businesses that had been severely disadvantaged and destroyed by the lack of communication services between business owners and potential clients.

We, the COT claimants, lost millions of dollars, our mental health declined, and our livelihoods collapsed in ruins. Yet, those in government - the architects of this injustice, this corruption and who had perpetuated these crimes against ordinary citizens - are still in positions of power today. Our stories are still being covered up and actively buried in bureaucratic red tape.

These are our stories which are of major significance today as the cover up has continued to the present day. The stories reveal how through the development of technology, large organisations have been allowed to disadvantage their clients, cover up corrupt operation practices and mismanagement, as well as avoid any responsibility for their failure to act in the interests of a client base or deliver the services they had promised. It is a story of vast government corruption, injustices, and criminal behaviour worthy of a Sicilian mafia organisation.

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Leading up to this Senate hearing 0n 20 August 1997, in parliament house Canberra, Steven Boswell (sadly now deceased) provided his father, Senator Ron Boswell, a fax he had just received from my lawyers, MICHAEL BRERETON & CO (File 51-G Open Letter File No/51-A to 51-G). Steven reminded his father in the company of several other COT Cases that it was he, his father, who had raised Telstra's unlawful threats made against me because I had assisted the Australian Federal Police with their investigations into Telstra's unauthorised interception of my telecommunications services Refer to questions 1 to 93 Australian Federal Police Investigation File No/1.

Threats made

Threats Carried Out

Threats were made against me by Telstra arbitration officials because I assisted the Australian Federal Police with their investigations into these phone and fax hacking issues. Refer page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, which reports Senator Ron Boswell asking Telstra’s legal directorate:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false; the senator states:

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” Senate Evidence File No 31

Thus, the threats became a reality. What is so appalling about this withholding of relevant documents is this - no one in the TIO office or government has ever investigated the disastrous impact the withholding of documents had had on my overall submission to the arbitrator. The arbitrator and the government (at the time, Telstra was a government-owned entity) should have initiated an investigation into why an Australian citizen, who had assisted the AFP in their investigations into unlawful interception of telephone conversations, was so severely disadvantaged during a civil arbitration.

This harassment by Telstra and their internal security division continued for years. No one in government or the arbitration process would investigate the devastation these threats, harassment combined with corporate thuggery, had on the lives of the COT Case members.

Steven Boswell (now deceased) was much like his dad passionate

A emontionable Senator Ron Boswell

Four months after Dr Hughes prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telecom/Telstra, an emotional Senator Ron Boswell discussed the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He stated:

“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …

“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP , in a terse advice, recommended against proceeding. …

“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …

“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …

“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1)

Thus, the government was officially informed of the above concerning an arbitration process it endorsed and should have immediately appointed a review of the whole sordid affair. It never did.

Again threat were made against me

These threats were made by the Chair of the Senate

The following exhibit Senate Evidence File No 12 shows I was threatened twice by Senator Alan Eggleston, once on 16 August 2001 and again on 6 December 2004, that if I disclose the contents of the 6 and 9 July 1998 In-Camera Hansard, the Senate will have me charged with contempt of the Senate, even though the release of those documents could well have won sixteen arbitration and mediation appeals as An Injustice to the remaining 16 Australian citizens) shows.

These 6 and 9 July 1998 In-Camera Hansardact (privileged government records), confirm one National Party Senator verbally attacked a very senior Telstra arbitration officer who in May 1995, had previously admitted in writing he had withheld 760 relevant FOI until after the arbitrator had concluded his findings without ever having assessed these relevant late released documents. Documented evidence which would have changed the whole outcome of my arbitration. The following statement to the same Telstra arbitration defence spokesperson, “You are really a disgrace, the whole lot of you,” shows what the Senate thought of this arbitration officer. This Senator then apologised to the chair of the Senate committee after making this adverse statement by making a further dammning statement noting:

“Madam, I withdraw that, but I do say this: this has got a unity ticket going right through this parliament. This has united every person in this parliament – something that no-one else has ever had the ability to do – and Telstra has done it magnificently. They have got the Labor Party, they have got the National Party, they have got the Liberal Party, they have got the Democrats and they have got the Greens – all united in a singular distrust of Telstra. You have achieved a miracle.”

All I wanted to do by releasing the 6 and 9 July 1998 In-Camera Hansardact (privileged government records) is to highlight how discriminative the then John Howard, NLP government was by allowing only five of the twenty-one COT Cases on the Senate Schedule list of unresolved Freedom of Information documents we twenty-one COT Cases were promised we would receive if we signed our arbitration and mediation processes.

Public servants with a self-interest



Bureaucrats need to take orders, not take charge. The public service can easily become the de facto government.

Telstra withholding my requested telephone exchange data and refusing to release their exchange logbook effectively stopped me from proving my claims of ongoing telephone problems. I took those unreleased documents issues to the Administrative Appeals Tribunal (AAT - No V2008/1836). The respondents in that AAT hearing were the government communications regulator ACMA, who, when facilitating my arbitration, promised we COT Cases would be provided the documents we needed to support our claims.

On 3 October 2008, the Judge hearing my case, Mr G. D. Friedman, advised me in front of two government lawyers and several witnesses in the court chambers that the government should release those documents as a moral gesture. I have yet to see those documents I specically requested.

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

Chapter 12 - The twelfth remedy pursued show, by 2011 ACMA had still not released my original 1994 promised arbitration documents even John Pinnock Telecommunications Industry Ombudsman officially alerting a Senate Estimates Committee (see Prologue Evidence File No 22-D) on 26 September 1997 that:

"...In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act."

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This website is a work in prgress last edited October 2023.

A click on Absent Justice Book 2 is free, it tells the COT story from the very beginning. If you want to donate an appreciation to the book please send it directly to  Transparency International.

Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. Instead of our very deficient telephone services being fixed, as part of our government-endorsed arbitration process that was set up by the government to fix the problems, it turned into an uneven battle the COT Cases could never win, our ongoing telephone and faxing problems were NOT fixed as part of the process, regardless of the hundreds of thousands of dollars, it cost us, claimants, to mount our claims against Telstra. Crimes were committed against us and our integrity was attacked and undermined.

Government public servants and lawyers involved in the COT arbitrations have long been saying that some COT Cases will not just walk away. These people are not saying publically that ninety per cent of those who will not move on are their businesses were their livelihoods, and in many cases like mine, my residence was part of the holiday camp.

What money was left after my arbitration battle with Telstra and the ‘so-called award’ paid by the arbitrator, which was less than twelve per cent of what my forensic accountant stated I had lost due to my ongoing phone problems, I had to mortgage my business again. An employed caretaker and his wife, who helped reclad my four second-hand wooden buildings over their three-year period, were told by their friends and fellow churchgoers that they could never make contact by phone.

This letter and many similar letters were written by people after my arbitration over a six-year period, which I then forwarded to John Pinnock, the Telecommunication Industry Ombudsman (TIO) and several members of the TIO board and Council as late as December 2002, who declined to investigate stating that my 1994 arbitration process addressed my onging phone problems.

Similar letters were again written to me and received from the TIO, TIO Board and TIO Council saying that my arbitration was over and the arbitrator was in your favour. Frustration set in because the TIO would not investigate why my arbitration telephone faults had continued to beset my partner Cathy and I, sold our beloved holiday camp for land value only in December 2001

By January 2002, through to 2008, the new owners started writing to the same people with minimal results. Chapter 4 The New Owners Tell Their Story.

In August 2009, the new owners, Darren and Jenny Lewis, were walked off the property as bankrupts.

Two editors viewing my story over several years have had sleepless nights throughout the editing. Both have refused to accept a payment since 2018, as I continue with my website and my updated book. They want to be around when those covering up what is undoubtedly criminal conduct are brought to account for their ill-doings.

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Lawyers and government ministers

Four professional people all prepared to mislead and deceive

The central part of this story is about four professional people: three were lawyers, and one was also an ex-government minister turned ombudsman before returning to being a minister in the John Howard Government in March 1996.

Two are still lawyers today, while the minister resigned from the government and is now a successful businessman. The fourth, who acted as a financial accountant during the government-endorsed arbitrations, later became a qualified, graded arbitrator with an arbitration centre in Melbourne, Australia, and Hong Kong.

All four have one thing in common: they were all involved in administering the Casualties of Telstra arbitrations, which the Australian government had endorsed. All four were partly involved in concealing several crimes the Telstra corporation committed before or during the COT arbitrations.

Three of these professionals were involved in covertly agreeing to use Telstra’s drafted arbitration agreement instead of an independently drafted agreement that the government thought they were endorsing.

Things got even worse when these four began to understand they should not have had secret arbitration meetings with the defendants without the claimants being present, set up a situation where Telstra used a private pre-arbitration forum as well as a covert agreement that allowed the Telecommunications Industry Ombudsman (TIO)-appointed consultants to have first access to relevant arbitration documents before the arbitrator and claimants viewed them (exhibit 590 File AS-CAV Exhibits 589 to 647), effectively allowed Telstra to control the arbitrations and not the arbitrator.

When the second-appointed TIO officially advised a Senate Estimates Committee (Prologue Evidence File No 22-D) on 26 September 1997 that the arbitrator had no control over the arbitration process, that admission came too late for most of the COT Cases whom this arbitrator had already arbitrated on.

Who was behind this misleading and deceptive conduct?

Clauses 25 and 26 was covrtly removed

Alterations were covertly administered to the arbitration agreement after the COT Cases’ lawyers endorsed it.

To have exposed the removing and altering clauses 25 and 26 before the arbitrations commenced would have implicated these four individuals in what they had allowed. The fact that the three legal personnel had sanctioned using Telstra’s drafted arbitration agreement, as well as removing the $250,000.00 liability clauses in the arbitration agreement Chapter 5 Fraudulent conduct and in making so disadvantaged the COT Cases’ claims and any chance they had of successfully appealing the process should have been investigated in 1995 when this conduct was exposed.

These three people knowingly participated in a tainted arbitration process before it got off the ground.

All the evidence of what took place, and more, as well as the names of the people involved in this terrible, unjust process, can be downloaded from this website, absentjustice.com, as my story unfolds from the chapters in the menu bar above.

Even worse, when the arbitrator became aware that the Telstra-drafted arbitration agreement used in my arbitration was not a credible document to have been used, it was used anyway, to my detriment, as the exhibits on this website show.

How do you publish a true account of what really has happened during various Australian Government endorsed Arbitration's without attaching the exhibits to support those facts as we have been literally forced to do because the corruption within the government bureaucracy is so rife? How does the author prove that government public servants fed privileged information to the then, Australian Government owned telecommunications carrier (the defendants) but also concealed the same documentation from the claimants i.e. their fellow Australian citizens?

How do you tell a story that is so unbelievable that even the author has doubts to the authenticity of what they are writing until they check their records before continuing on with the story being written? How do you expose collusion between an arbitrator, various appointed government watch dogs (umpire) and the defendants? How do you expose the fact that the defendants in an arbitration process (the once Government owned telecommunications carrier) used equipment connected to their network, screened faxed material leaving your office, stored it, without your knowledge or consent, before redirecting it onto to its intended destination?

The defendants (the Telstra Corporation) were surely using this screened material to benefit their arbitration defence to the detriment of the claimants.

A secondary fax machine

illegal phone/fax interception

My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B) to Telstra’s corporate secretary, show I was concerned that my faxes were being illegally intercepted.

An internal government memo, dated 25 February 1994, confirms that the minister advised me that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See Hacking-Julian Assange File No/28)

This internal, dated 25 February 1994, is a Government Memo confirming that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (AFP Evidence File No 4)

The fax imprint across each of the documents and letters provided to two well recognised technical telecommunication specialists both made sworn statements that the fax imprint described in their Scandrett & Associates report (see Open Letter File No/12 and File No/13) were all captured by a secondary fax machine (intercepted) during their arbitrations.

This gave a considerable benefit to the defendant because, of course, that gave them time to decide which aspect of the claim would be easy to defend and which would be best to avoid completely. Try to imagine what that would have felt like for the claimants. It would be best if you also remembered, as we record elsewhere on absentjustice.com, that some of those documents, which we sent off through what should have been a secure fax and postal system, never arrived at their intended destination.

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Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. Instead of our very deficient telephone services being fixed, as part of our government-endorsed arbitration process that was set up by the government to fix the problems, it turned into an uneven battle the COT Cases could never win, our ongoing telephone and faxing problems were NOT fixed as part of the process, regardless of the hundreds of thousands of dollars, it cost us, claimants, to mount our claims against Telstra. Crimes were committed against us and our integrity was attacked and undermined.

In my case, threats were also made against me by Telstra. My integrity was attacked, and my claims were branded frivolous before my first settlement with Telstra on 11 December 1992 (Refer to AUSTEL’s Adverse Findings, at Point 2 to 212); after that settlement, when threats were again made against me between 10 September 1993 (refer to Prologue Evidence File 1-A to 1-C) and the start of my government-endorsed arbitration process on 21 April 1994 (Refer to Australian Federal Police Investigation File No/1 as well as through to my Department of Communication, Information Technology and the Arts (DCITA) government assessment process orchestrated by Senators Helen Coonan and Barnaby Joyce in March 2006 (Refer to Chapter 8 - The eighth remedy pursued).

A click on Absent Justice Book 2 is free; it has taken me a considerable amount of time, as you will observe. It was paramount that all 1,700 plus exhibits which prove my statements made in this unbelievable story had to be doubled checked for clarity. If you would like to donate an appreciation to my story, please send it directly to Transparency International Australia.

When looking for a single numbered exhibit discussed either on this website or Absent Justice Book 2 some of those exhibits can also be located from the files below   Example 1:  i.e. AS 942 go to AS-CAV 923 to 946.

Example 2: i.e. AS 33 go to AS-CAV Exhibit 1 to 47.

AS-CAV Exhibit 1 to 47 – AS-CAV Exhibit 48-A to 91 – AS-CAV Exhibit 92 to 127 – AS-CAV Exhibit 128 to 180 – AS-CAV Exhibit 181 to 233 – AS CAV Exhibit 234 to 281 – AS-CAV Exhibit 282 to 323 – AS-CAV Exhibit 324-a to 420 – AS-CAV Exhibit 421 to 469 – AS-CAV Exhibit 470 to 486 – AS-CAV Exhibit 488-a to 494-e –AS-CAV Exhibits 495 to 541 – AS-CAV Exhibits 542-a to 588 – AS-CAV Exhibits 589 to 647 – AS-CAV Exhibits 648-a to 700 – AS-CAV Exhibit 765-A to 789 – AS-CAV Exhibit 790 to 818 – AS-CAV Exhibit 819 to 843 – AS-CAV 923 to 946 – AS-CAV Exhibit 1150 to 1169 – AS-CAV 1103 to 1132 – AS-CAV Exhibit 1002 to 1019 – AS-CAV Exhibit 996 to 1001 – GS-CAV Exhibit 1 to 88 – GS-CAV Exhibit 89 to 154-b – GS-CAV Exhibit 155 to 215 – GS-CAV Exhibit 216 to 257 – GS-CAV Exhibit 258 to 323 – GS-CAV Exhibit 410-a to 447 – GS-CAV Exhibit 448 to 458 – GS-CAV Exhibit 459 to 489 – GS-CAV Exhibit 490 to 521 – GS-CAV 522 to 580 – GS-CAV Exhibit 581 to 609

I have raised here four letters, one dated 17 August 2017, 6 October 2017, 9 October 2017 and 10 October 2017, from COT Case Anne Garms, just before her death, to The Hon Malcolm Turnbull MP, Prime Minister of Australia and Senator the Hon Mathias Cormann (see See File Ann Garms 104 Document) where she exposes not only the raping of first nation (aboriginal children) by Senator Collins in his parliament house Canberra office.

We COT Cases were later advised that another possible reason we were not getting our requested FOI documents from Senator Bon Collins's office is that his minders did not want to release any government information to the COT Cases while the Senator was under investigation (rb.gy/dsvidd).  This, of course, further compounded the document issues surrounding our arbitrations.

Ann also discloses in her 6 October 2017 letter is which is a single letter marked Doc B, to the Hon Malcolm Turnbull MP, Prime Minister of Australia, raises the same pages in Frank Blount's book  https://www.qbd.com.au › managing-in-australia › fran admits Telstra did have major problems in their network.

Had the arbitrator and administrator to the COT arbitrations been aware that Frank Blount would be making public statements about how deficient the network was less than two years after Telstra had sworn under oath in some thirty or more statutory declarations that Telstra's network was of world standard when pages 116, 132, 133, 136, and 137 in https://www.qbd.com.au › managing-in-australia › fran: the COT Cases would have been awarded a far greater compensation payout than they did.

It was also essential to raise Ann Garms's letter here because Wayne Goss (Chair of Deloitte), referred to by Ann, had also been Premier of Queensland, and therefore, when Ann said he told her that during our arbitrations, Gaslighting methods were used against us fits in with the Gaslighting character assassination used against me in 1996, to stop Laurie James, the President of the Institute of Arbitrators Australia from investigating my claims concerning the unethical way in which the four COT arbitrations had been conducted.

This is the same type of unethical conduct that three young hackers (later identified as Julian Assange) warned Graham Schorer, COT spokesperson, about very early in our arbitrations.

Julian Assange - Hacking

If the hackers that telephoned Graham Schorer, COT spokesperson, in April 1994, were Julian Assange and his friends, then they provided a very important link for the COT cases, but we did not know this during our arbitrations. No one in government, including two Attorney Generals, denied these three hackers were Julian Assange and his mates. My two letters to those Attorney Generals in 2010 and 2011, detailing what the hackers stated concerning Telstra’s unlawful conduct, brought no response at all, despite attaching irrefutable evidence (see Open Letter File No/12 and File No/13) showing the COT cases’ arbitration-related documents faxed to the arbitrator and our arbitration advisors were regularly screened by Telstra and, in my own case, 43 faxes that Telstra charged me for never arrived at the intended destination.

The electronic surveillance (Open Letter File No/12 and File No/13) is what the hackers (see below) discussed with Graham Schorer COT spokesperson when they contacted him very early in our arbitration process.

Click on the following Julian Assange caption below and learn more about the COT story

If it was Julian Assange who contacted Graham Schorer, COT spokesperson (See Hacking – Julian Assange File No/3), how did he know during the COT v Telstra government-endorsed arbitration where the Australian Federal Police were carrying out their own investigations as the arbitrator had been doing concerning Telstra's unauthorised interception of the COT Cases telecommunications service lines for the first twelve months of those arbitrations that the COT Cases were under electronic surveillance?

What had the hackers seen to have been able to make those statements to Mr Schorer?

Graham Schorer prepared a statutory declaration on 7 July 2011 to provide to the Victorian Attorney-General the Hon Robert Clark. This statutory declaration discusses the hackers who phoned Graham to warn him. The hackers discovered Telstra and others associated with our arbitrations were acting unlawfully towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his Melbourne and Sydney offices

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.” (See Hacking – Julian Assange File No/3)

On the covering page of a joint 10-page letter dated 11 July 2011 to the Hon Robert McClelland, federal attorney-general and the Hon Robert Clark, Victorian attorney-general, I note:

“In 1994 three young computer hackers telephoned Graham Schorer, the official Spokesperson for the Casualties of Telstra (COT) in relation to their Telstra arbitrations.

Was Jullian Assange one of these hackers?

The hackers believed they had found evidence that Telstra was acting illegally.

In other words, we were fools not to have accepted this arbitration file when it was offered to us by the hackers who conveyed to Graham Schorer a sense of the enormity of the deception and misconduct undertaken by Telstra against the COT Cases.” (AS-CAV Exhibit 790 to 818 Exhibit 817)

I also wrote to Hon. Robert Clark on 20 June 2012 to remind him that his office was already in receipt of the 7 July 2011 statutory declaration from Graham Schorer. I also approached other government authorities and provided the Scandrett & Associates report (see Open Letter File No/12 and File No/13), which leaves no doubt that the hackers were absolutely correct concerning this electronic surveillance.

If the hackers included Julian Assange, then he carried out a duty to expose what he thought was a crime. Major law enforcement agencies and the media have been asking the Australian public to disclose incidents which they believe are crimes, because doing so is in the public interest. When I exposed similar crimes to the Australian Federal Police – Australian Federal Police Investigation File No/1 – I was penalised for it and Telstra carried out its threats.

On page 15 of a publication titled The Most Dangerous Man In The World, written in 2011 by the ABC TV Four Corners journalist Andrew Fowler, Mr Fowler notes that Julian Assange was one of those who hacked into Telstra's Lonsdale Street Telephone Exchange computer system in the centre of Melbourne. This is the same Lonsdale telephone exchange which had caused so many problems for my business, as reported in the government's report titled AUSTEL’s Adverse Findings, which notes at Point 209 –

“Cape Bridgewater Holiday Camp has a history of service difficulties dating back to 1988. Although most of the documentation dates from 1991 it is apparent that the camp has had ongoing service difficulties for the past six years which has impacted on its business operations causing losses and erosion of customer base.”

Page 21 in the 26 November 1996 Telstra Arbitration Briefing Document for Graham Schorer (COT spokespersn) also refers to problems at the Lonsdale Street Telephone Exchange, noting that the problems affected the service lines of Graham's courier business. So what did Julian Assange and his friends find at the Lonsdale Street Telephone Exchange that prompted them to telephone Graham Schorer?

My statement to Mr Pinnock, Telecommunications Industry Ombudsman (the second appointed administrator to my arbitration) in my 20 October 1995 letter that: "This phrase has now come home to roost" (refer to exhibit 537 - GS-CAV 522 to 580) was my way of saying that I believed that the advice Graham Schorer received from these hackers – that Telstra and others associated with the COT arbitrations were acting unlawfully towards the COT Cases – was the truth.

If only the arbitration professionals had listened

What made a boy want to disclose what he exposed

Why didn't the four Arbitration professionals (see below) involved in both Graham's Schorer's and my arbitration investigate our claims in April 1994 that these Hackers had uncovered our legal rights under the government-endorsed arbitration process were being violated by the government-owned Telstra corporation?

Julian Assange was a boy when he telephoned Graham Schorer. What made a boy want to disclose what he exposed four years before six Australian Senators uncovered the same evidence as reported below?

Sadly for Julian Assange, his family and freedom of speech (which the world is crying out for), he has paid a far higher price (and still is) than I have paid for assisting the Australian Federal Police during their investigation into Telstra’s corrupt practices while in litigation with Australian citizens.

ABSENT JUSTICE - ARBITRATION

I am not John Grisham spinning a story here

_{Don't forget to place your mouse/cursor over the following images below and press}

Four small business operators were targeted so they could not wholly prove their claims

Page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page. Prologue Evidence File 1-A to 1-C

What I did not know, when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults is that this "COT Case Strategy" was a set up by Telstra and their lawyers to hide all proof that I truly did have ongoing telephone problems affecting the viability of my business.

This continual writing up of individual telephone faults, to these lawyers Freehill Hollingdale & Page, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this fault evidence, I was providing it to Telstra believing this would assist them in locating the problems my business was experiencing.

I was unaware I would later need this evidence for an arbitration process. This arbitration process meant I had to retrieve back, from Telstra under Freedom of Information, the very same documentation I had previously provided this legal firm. Imagine the frustration of knowing that you had already provided the evidence supporting your case but it was now being withheld from you by Telstra and their lawyers.

If this wasn’t soul-destroying enough, imagine learning that lawyer, with who you were being forced to register your phone complaints, devised a legal paper titled “COT Case Strategy”,  instructing their client Telstra (naming me and my business) on how Telstra could conceal this same type of technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. SENATE official Hansard – Parliament of Australia.

A secondary fax machine

illegal phone/fax interception

My 3 February 1994 letter to Michael Lee, Minister for Communications (see Hacking-Julian Assange File No/27-A) and a subsequent letter from Fay Holthuyzen, assistant to the minister (see Hacking-Julian Assange File No/27-B) to Telstra’s corporate secretary, show I was concerned that my faxes were being illegally intercepted.

An internal government memo, dated 25 February 1994, confirms that the minister advised me that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (See Hacking-Julian Assange File No/28)

This internal, dated 25 February 1994, is a Government Memo confirming that the then-Minister for Communications and the Arts had written to me to advise that the Australian Federal Police (AFP) would investigate my allegations of illegal phone/fax interception. (AFP Evidence File No 4)

The fax imprint across each of the documents and letters provided to two well recognised technical telecommunication specialists both made sworn statements that the fax imprint described in their Scandrett & Associates report (see Open Letter File No/12 and File No/13) were all captured by a secondary fax machine (intercepted) during their arbitrations.

This gave a considerable benefit to the defendant because, of course, that gave them time to decide which aspect of the claim would be easy to defend and which would be best to avoid completely. Try to imagine what that would have felt like for the claimants. It would be best if you also remembered, as we record elsewhere on absentjustice.com, that some of those documents, which we sent off through what should have been a secure fax and postal system, never arrived at their intended destination.

?

Questions upon questions that have never been answered by the arbitrator

Gross negligence

Had the arbitrator allowed me to resubmit the faxes that I could prove were not assessed by his technical consultants, who have stated in their report at point 2.23 to point 3 that they only evaluated 23 of my registered 200 plus fault complaints (refer to Exhibit 45-c - File No/45-A, @ Chapter 1 - The collusion continues my life would have been complete. This simple task was denied to me twenty-eight years ago.

What was the point of allowing me to spend $ 300,000.00 in arbitration fees if only 23 of my registered phone complaints, i.e. out of 200, were assessed? No wonder the arbitrator made no ruling (no written finding) that my phone problems were still ongoing when he brought down his award.

The fact that some of my lost faxed arbitration claim documents were related to the carelessness of his Sydney office has never been investigated (see below).

Questions about who knew what documents were redirected from the arbitrator's Melbourne office to his Sydney office by the automated facsimile service when the Melbourne office closed each day have never been answered.

Questions regarding what previously faxed Melbourne arbitration information stayed in the arbitrator's Sydney office after it was received were not redirected back to Melbourne for assessment by the arbitrator.

According to this letter dated 30 July 2009, from Graham Schorer (COT spokesperson) and ex-client of the arbitrator Dr Hughes (see Chapter 3 - Conflict of Interest) wrote to Paul Crowley CEO Institute of Arbitrators Mediators Australia (IAMA), attaching a statutory declaration (see ”Burying The Evidence File 13-H and a copy of a previous letter dated 4 August 1998 from Mr Schorer to me, detailing a phone conversation Mr Schorer had with the arbitrator early in 1994 regarding lost Telstra COT related faxes. During that conversation, the arbitrator explained, in some detail that:

“Hunt & Hunt  Australian Head Office of was located in Sydney and  is a member of an international association of law firms. Due to overseas time zone differences, at close of business,  Melbourne’s incoming facsimiles are night switched to automatically divert to Hunt & Hunt Sydney office where someone is always on duty. There are occasions on the opening of the Melbourne office, the person responsible for cancelling the night switching of incoming faxes from the Melbourne office to the Sydney Office, has failed to cancel the automatic diversion of incoming facsimiles.”Burying The Evidence File 13-H.

The fact that Dr Hughes did not official diclose these faxing problems between his Sydney and Melbourne office prior to is hinging on criminal negligence.

Further example: It is also clear from Front Page Part One File No/1, at least six that six documents faxed from my office to the arbitrators office did not reach their intended destination even thought Telstra charged me for those six faxes!

Simply put, the arbitrator was hampered by this terrible situation that still needs investigation. The arbitrator only made a finding on the documents he saw, not those stolen en route to his office via Telstra's telecommunications network. How can the government continue saying justice was received when the arbitrator did not make a single finding in his award that my phone and faxing problems were still ongoing? How could he when Telstra did not release them until October 1998, thirty-nine months after the conclusion of my arbitration?

Even worse for Dr. Gordon Hughes (the arbitrator) is that while the COT Cases arbitration faxes to his office were being faxed through to his Sydney office each night after his office closed for the night, Dr Hughes' office had several Telstra clients at that same time when COT Telstra Melbourne related arbitration faxes were arriving in the same fax trays in the Sydney office. Those Telstra faxes may well have been mistakenly thought to be Sydent Telstra-related documents, especially when the Australian Federal Police (AFP) were investigating both Sydney Telstra employees for rorting millions upon millions of dollars in false travel and accommodation fees (see SENATE official Hansard – Parliament of Australia), and in the AFP in Melbourne were investigating Telstra employees for unauthorised fax and phone interception issues.

Why have these lost arbitration faxed claim documents never been transparently investigated where all parties must explain their positions? What have the arbitrator, Dr. Gordon Hughes and the administrators of the COT arbitrations got to lose by investigating why Dr. Hughes never raised these lost fax issues concerning his office might have contributed to some of these losses?  On pages 5163 to 5169, this SENATE official Hansard – Parliament of Australia, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders, i.e., the government and Australian citizens, who then owned Telstra.

Threats made during my arbitration

Threats carried out during my arbitration

Threats were made against me by Telstra arbitration officials because I assisted the Australian Federal Police with their investigations into these phone and fax hacking issues. Refer page 180 ERC&A, from the official Australian Senate Hansard, dated 29 November 1994, which reports Senator Ron Boswell asking Telstra’s legal directorate:

“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”

After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false; the senator states:

“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)

Thus, the threats became a reality. What is so appalling about this withholding of relevant documents is this - no one in the TIO office or government has ever investigated the disastrous impact the withholding of documents had had on my overall submission to the arbitrator. The arbitrator and the government (at the time, Telstra was a government-owned entity) should have initiated an investigation into why an Australian citizen, who had assisted the AFP in their investigations into unlawful practices be subjected to such appalling conduct by Telstra Corporation.

A free for all at the cost of democracy

From April 1994 to October 2008, after the Australian government refused to investigate my claims that their public servants and the Telstra corporation withheld vital evidence from me during my arbitration in 1994 and 1995, which would have supported my arbitration claims of ongoing telephone problems not addressed in my government-endorsed arbitration. I took these claims to the Administrative Appeals Tribunal (AAT - No V2008/1836). The respondents in that AAT hearing were the government communications regulator ACMA, who had access to my previously withheld Telstra documents.

On 3 October 2008, after having submitted approximately ninety-per-cent of the documents that can now be downloaded from this website, the other ten per cent are dated after 3 October 2008, the Judge hearing my case, Mr G. D. Friedman, advised me in front of two government lawyers, and those in the court chambers:

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

Even though the judge hearing my case, Mr. G.D. Friedman, advised ACMA at this 2008 hearing, he found my request for documents valid. ACMA only provided me with a portion of those requested documents, which I was initially promised during my 1994/95 arbitration would be provided if I entered into my government-endorsed settlement/arbitration process. By 2010, I had yet to receive those documents via the AAT process from ACMA. I again took the government (ACMA) to task at a considerable cost (Refer to Chapter 12 - The twelfth remedy pursued).

After my May 2011 AAT / ACMA hearing (No 2010/4634), I had only received a portion of my requested Freedom of Information documents, which I originally needed to support my 1994 to 1995 Settlement/Arbitration process. This denial by ACMA to release these original requested document was made regardless of John Pinnock Telecommunications Industry Ombudsman (who was also the administrator to the COT arbitrations) officially alerting a Senate Estimates Committee (see Prologue Evidence File No 22-D) on 26 September 1997 that:

"...In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act."

"Firstly, and perhaps most significantly, the arbitrator had no control over that process because it was a process conducted entirely outside of the ambit of the arbitration procedures".

I also reminded ACMA in both the 2008 and 2011 Administrative Appeals Tribunal hearing that several Senators confirmed we COT Cases should have received our 1994 requested arbitration documents before and during our arbitrations; and I quote:

Infringe upon the civil liberties

Most Disturbing And Unacceptable

On 27 January 1999, after having also read my first attempt at writing my manuscript absentjustice.com, the same manuscript I provided Helen Handbury, sister to Rupert Murdoch, (see Rupert Murdoch - Hacked Documents) Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.”

Senator Kim Carr criticised the handling of the COT arbitrations on 11 March 1999, as the following Hansard link shows. Addressing the government’s lack of power, he said:

“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”

And when addressing Telstra’s conduct, he stated:

“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.” (parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Senator Schacht was possibly very vocal when he stated:

“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues

on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long.

The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”

They have defied the Senate working party.

On 23 March 1999, after most of the COT arbitrations had been finalized and business lives ruined due to the hundreds of thousands of dollars in legal fees to fight Telstra and a very crooked arbitrator, the Australian Financial. Review reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:

“A Senate working party delivered a damning report into the COT dispute. The report focused on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They have defied the Senate working party. Their conduct is to act as a law unto themselves.”

The following six senators all formally record how those six senators believed that Telstra had ‘acted as a law unto themselves’ throughout all of the COT arbitrations, is incredible. The LNP government knew that not only should the litmus-test cases receive their requested documents but so should the other 16 Australian citizens who had been in the same government-endorsed arbitration process (Refer to An Injustice to the remaining 16 Australian citizens).

Eggleston, Sen Alan – Bishop, Sen Mark – Boswell, Sen Ronald – Carr, Sen Kim – Schacht, Sen Chris, Alston and Sen Richard)

Other government ministers have shown their disgust at the way Telstra was able to act as a law unto themselves as can be seen from Senator Mark Bishop's statement shown below notes in the following link > aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra's costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee's view Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million - Senator Boswell - Some $24 million.

Senator Mark Bishop -

"I am informed by Senator Boswell it is 24 million - defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous propostion and a waste of public money".

A fair resolution of all the COT cases claims has still not been reached as the following An injustice to the remaining 16 Australian citizens shows.

On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled 16 Australian citizens were so badly discriminated against, by the then-coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.

At a press conference on the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?” Senate Evidence File No 56

Also during this same press conference Senator Len Harris asked many other questions including why should an owner of a business such as the holiday camp at Cape Bridgewater literally be forced to sell that business because Telstra had still been unable to fix the ongoing telephone problems that Senator Richard Alston himself had investigated in 1992, ten years previous and concluded were affecting Mr Smith's holiday camp. The same telephone problems which Mr Smith raised in his 1993/94 arbitration and was still raising with Telstra in 2001, seven years after the arbitration process had failed to rectify those problems.

My beloved holiday camp

Nine years after my arbitration the ongoing phone problems ruined the lives of the new owners

Chapter 4 The New Owners Tell Their Story

On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra discusses the ongoing telephone problems being experienced by the new owners of my business noting:

“Mr & Mrs Lewis claim in their correspondence attached:

That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.

That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” Burying The Evidence File 10-A

Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician, Tony Watson, was now refusing to help Mr Lewis with, nine years later?

The begining of this story COT can be accessed by clicking on Corruption in Arbitration 2

The memory of this terrible saga will not go away

Read about our dealings with:

Spying during the COT arbitration by Telstra was tolerated by those who administered the COT arbitrations. Proof that electronic surveillance equipment connected to the COT Cases business and residence facsimile service lines to gain an illegal advantage over litigants during court proceedings and private negotiations were never transparently investigating Chapter 4 Government spying/Scandrett & Associates facsimile interception report, Open Letter File No/12 and File No/13.

Unaddressed threats carried out by the Telstra Corporation against the COT Cases during their arbitrations. See Senate Evidence File No 31

Withholding important discovery documents in an arbitration procedure: Absent Justice Part 2 - Chapter 14 - Was it Legal or Illegal?

Tampering with evidence in the arbitration: Tampering With Evidence.

Relying on defence documents that are known to be flawed: Telstra’s Falsified BCI Report);

AUSTEL (for the government) concealed vital evidence from the arbitration process that would have won my case:  AUSTEL’s Adverse Findings at points 2 to 212.

Those administering the arbitrations allowed vital evidence not to be excluded  in at least two reports which minimized Telstra's liability to the claimant: Refer to Chapter 1 - The collusion continues and Chapter 2 - Inaccurate and Incomplete

Fraud allegations against Telstra during the COT arbitrations were registered with the Major Fraud Group Victoria Police by Barrister Sue Owens, only to be squashed under pressure by the Australian government (see Chapter 2 - Julian Assange - Hacking - we did not listen and transcripts Major Fraud Group Transcript (2)

Warts and All.

INTRODUCTION 1

CHAPTER 1

Have you ever had reason to complain about your phone bill?

Have you ever discovered that, even though you know you were right beside the phone at a particular time, your friend insisted he had rung and you had not answered?

Has anyone ever mentioned in passing that they are amazed at how much time you spend on the phone when you know your phone hasn’t rung for days (and you have hardly made any outgoing calls)?

Have prospective clients abused you for being unprofessional and not answering your phone for days when the phone hasn’t even rung once for the last week?

If you have ever experienced only one of these situations then you will understand why I sometimes feel I have lived through a nightmare — I experienced all these problems, and more, for almost twenty years. Unfortunately, I knew nothing of what was ahead of me when I bought my phone-dependent business at Cape Bridgewater, in rural Australia. It wasn’t until much later that I discovered that the business was connected to an antiquated phone exchange which had been installed more than 30 years before and which was designed specifically for what the Australian telecommunications carrier (Telstra) designated as ‘low-call-rate areas’. This ancient telephone exchange was certainly never intended to handle the amount of calls that were already being made by residents and holidaymakers in late 1987 when I arrived to take over the business, nor was it ever intended to handle the increased number of calls that occurred in this holiday village at holiday time.

Back when I started to operate my business in February 1988, when I commenced my arbitration in April 1994, and beyond to the late 1990s, doing business via the internet and email was not an option. The way of doing business was starting to come into its own. Had we COT Cases been operating our companies during the period where emails and online advice was so readily available, then the phone and faxing problems we suffered would not have affected our business losses as they did. We did not get an efficient mobile phone system into Cape Bridgewater until 2004.

This story could easily be your story: I know, because this nightmare was my nightmare and is still my night may twenty-years after I sold the business in December 2001.

Back in December 1987, when I first fell in love with the small accommodation centre perched high on a hill above a picturesque bay on the south coast of Victoria, Australia, I knew this was a business I could run successfully.

My working life began in 1960 when, at age 15, I went to sea as a steward on English passenger/cargo ships. In 1963 I jumped ship and started work in Melbourne as an assistant chef, moving from one elite hotel to another; Hotel London, Australia Hotel, Menzies.

Two years later, now aged 20, I joined the Australian Merchant Navy, starting out on the Princess of Tasmania and, by 1975, I had put in time as a chef on many Australian and overseas cargo ships. Time learning to manage hotels, motels and restaurants around Victoria followed.

By 1979, married to Faye and with two children, I was working freelance, both in the catering industry and on Melbourne tug boats, while I studied for a Hotel/Motel Management Diploma. I had already taken on a Hotel/Motel and pulled it out of receivership so that the owners could sell it, once it was running successfully again.

By 1987, at age 44, I had enough experience behind me to know that I had the skills, the expertise and the knowledge to take a simple school camp and turn it into a successful venue for social clubs and family groups as well as schools. Unfortunately, what my wife and I did not know about and could therefore not be prepared for, were the ensuing problems that would arise because of the ‘elderly’ phone system in the area. This local, unmanned phone exchange had only 8 lines but, even back then, in 1987, it was being used by 60 other resident families (120 individuals), as well as the school camp. This meant that if 4 of the local residents were on the phone at the same time then there were only 4 other lines left for calls to come in to the remaining 116 people, and my business, which was connected to this out-dated telephone exchange for the first 3½ years after I moved in: 3½ crucial years in which I had expected to establish the business on a firm ground.

In February 1988, before we moved in, and in preparation for the planned expansion of the camp, I had some 2,000 glossy, coloured brochures printed and distributed. We expected the phone to ring off the hook with inquiries. Well, to be a bit more conservative, anyone could expect at least a 1% inquiry rate as a result of this sort of direct marketing, coupled with the personal visits I made to almost 150 schools and shires to extol the virtues of the camp.

By April of 1988 Faye and I were becoming seriously concerned about the telephone system. Some people were beginning to ask accusingly why we never answered our phone and others were suggesting that we should have an answering machine installed to take calls when we were away from the office. Even after we installed a new answering machine, the same complaints continued, coupled now with complaints about incredibly long periods when the phone was apparently engaged. We both knew very well that the phone had not been engaged for long spaces of time and often the phone didn’t ring at all for days on end. These complaints continued for years and the business floundered as a result.

Later, long after our first complaint to Telstra, we discovered that the previous owner of the business had been complaining, unsuccessfully, about these same phone faults long before we purchased the camp. This was clearly proved by a document I received once I began requesting information under Australia’s Freedom of Information Act (FOI - refer Glossary) which, for a small fee, allows any citizen to request copies of documents pertaining to themselves or their business, from any Government department or instrumentality. Over the ensuing years I accumulated literally thousands and thousands of FOI documents. The document which alerted me to the previous owner’s troubles was headed “Telstra Confidential: Difficult Network Faults — PCM Multiplex Report; 31/1/94”, with a sub-heading “5.5 Portland — Cape Bridgewater Holiday Camp”.

According to this document, Telstra was aware of the phone faults as far back as 1987, before we moved to Cape Bridgewater and before I lodged my first complaint which appears in Telstra’s archives on 26 April 1988.

When Faye and I looked at this business however, we were unaware of the existing phone problems and so we went ahead with the sale of our home in Melbourne and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.

Understandably, Faye became increasingly frustrated with the complaints we were receiving about the phone system. We began to doubt ourselves. Were we talking too long on the phone? Were we not hearing the phone ring? Had we forgotten to switch on the answering machine?

Call ‘drop-outs’ occurred frequently — the line just went dead. Mostly, if we had a contact number, we had to ring the caller back but sometimes people rang us back. If the caller had not yet given us contact information, and didn’t ring back, we lost that contact.

This new venture was not turning out to be quite as much fun as we had anticipated.

The real extent of the phone problem however, didn’t actually hit us until well into the Christmas period of 1988 when we put on a Christmas dinner for the locals in Cape Bridgewater.   During this dinner I mentioned the phone problems we were struggling with. Harry, our next-door-neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Fred Fairthorn, once the owner of ‘Tom the Cheap Grocery’ chain, concurred. His comment was “After all, what can you expect from Telstra when we’re in the bush?” Fred had suffered from similar problems over many years and later happily supplied a written statement to that effect.

As we rolled into the dawn of 1989 we were becoming more and more aware of what was to become our great nightmare. The failing phone system became the straw that broke the camel’s back of our 20-year marriage. I was beginning to run the business from a position of continual anger. Certainly I couldn’t blame anyone but myself when the gas bottles ran out in the middle of serving a meal for guests; some of the few who had managed to get through on the phone and make a booking.

My advertising campaign didn’t work: I began to feel I hadn’t properly researched the pros and cons before moving to Cape Bridgewater. I was beginning to ask myself what I had done when I asked Faye to leave her friends in Melbourne, to agree to selling the family home just so I could satisfy my blind ambition to run my own business. And so, as bookings dwindled instead of increasing as we had expected, our negativity grew in proportion.

We went touring to South Australia, selling the concept of our camp through the Wimmera area and to numerous schools. Nothing seemed to work as it should have; sure there were occasional inquiries, but they were far from frequent.

The closest local township to the Cape Bridgewater camp was Portland, 20 kms away. While there on a shopping expedition one day I realised I had left the meat order list behind. I phoned Faye only to get a Telstra recorded message telling me that the number was not connected! I phoned again. Same message.

Telstra’s fault centre said they would look into the matter and so I went about the rest of the shopping, leaving the meat order to the last. Finally I phoned the camp again; this time the phone was engaged. I decided to buy what I could remember from the meat order list and hope for the best.

Faye was not happy when I returned. The phone had not rung once while I had been away, she said, and how come I left the meat order behind anyway? She thought I was supposed to be such an efficient catering manager. My poor wife’s frustration was aimed straight at me, she didn’t stop to wonder why I couldn’t ring her from Portland.

According to a Telstra FOI document, between 19th April 1988 and 10th January 1989 I phoned from the camp to complain about the phone service on nine separate occasions. Add to this the letters of complaint that I wrote, plus my complaint from Portland when the recorded message told me my own phone had been disconnected, and a picture begins to emerge.

CHAPTER 2

Anyone who uses a telephone has at some time reached a recorded voice announcing “The number you are calling is disconnected” or something similar. Within the telecommunications industry these messages are referred to as RVAs or Recorded Voice Announcements (refer Glossary). Among the multitude of FOI documents that I received in 1994 was a copy of a Telstra internal e-mail dated 26/9/93, which refers to the need to “have a very basic review of all our RVA messages and how they are applied.” This e-mail goes on to say “... I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line.” Obviously Telstra were aware of RVA problems long before I experienced them.

Another internal Telstra document notes “As a result of the investigations into difficult customer complaints and associated reports it has become apparent that the present RVA for incorrect numbers requires revision” . This memo refers in particular to the message “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” This confirms Telstra’s acknowledgement that serious faults existed, particularly since the author of this memo goes on to say ”....this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.”

For a newly established business like ours, this was a major disaster but Telstra didn’t want to know, and certainly were not prepared to do anything about the situation Faye and I found ourselves in.

By mid 1989 our finances had dwindled and the bookings were still not coming in. We decided to sell some shares. The best price we could get was around $1.60 each for about 4,000 shares. Those shares were worth $8.20 each in October 1998.

Where had our savings gone? The sale of our home in Melbourne had raised $140,000 of the $280,000 investment we needed for the camp, leaving a mortgage of only a manageable $140,000. I had believed we were set for life: with a little hard work we should be under-way and running well by July 1989 but, here we were, in July 1989, within a mere 15 months of taking over the business and we were actually beginning to sell off our assets instead of reducing the mortgage.

I knew our marriage was suffering; my self-esteem was lower than it had ever been; I felt like a total failure. But things got worse, even though I didn’t think they could. Faye fell and broke her leg. Trips back and forward to the hospital added to the stress and, worse, the leg wasn’t setting as it should. A couple of short trips to visit friends in Melbourne cheered Faye up no end and, on the second trip, I used the time to do some marketing of the Camp around Caulfield and Huntingdale, and further into the city. I had decided to give it all I had.

At one point I rang the Camp answering machine, which had a remote access facility — allowing me to check the machine for any recorded calls. At least, it should have allowed me to check it, if I had been able to get through, but I couldn’t. All I could get was the same recorded message “The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.”

I decided not to tell Faye. She didn’t need to be reminded at this stage.

On the way home, just outside Geelong, Faye asked if I had checked for messages at the Camp. A white lie seemed appropriate. We stopped at the next phone box though, and rang home. The line was engaged. Somebody must be leaving a message on the machine! Or were they?

The only message recorded on the machine turned out to be from our friends in Melbourne, a call made the day we left, saying something like “Must have just missed you — see you when you get here.” Why had I received an engaged signal if there were no messages on the machine, other than one from days before? My previous call obviously wouldn’t have registered because I couldn’t get past the Telstra recorded message anyway. How many calls had we lost during the three days that we were away? How many frustrated prospective clients had given up trying to get through because they also reached a recorded message telling them the phone was no longer connected?

Faye was still making regular visits to the hospital and was, of course, not able to participate in any of the work around the place, so found herself with nothing to do and plenty of time to think. She found more and more reasons to travel away from the business: to her elderly parents, to the hospital, to see friends. Finally the burden of a failing business and the slow and difficult recovery from the broken leg became too much to bear: our marriage ended on 26 October 1989.

I had already been taking prescribed drugs for stress; that afternoon I added a quantity of Scotch and locked myself in one of the cabins on the property. Faye, understandably, became seriously concerned about my welfare and called the local police who broke into the cabin to ‘save’ me from myself. This was one of the many low points that I was to suffer as I battled to retain my sanity, my business and my standing in the local community. And still Telstra denied that there were any phone problems at Cape Bridgewater.

At this point I need to fill in some details regarding an incident that occurred back in 1967, during the cultural revolution in China. At that time many young Australians were supporting the American fight against Communism in Vietnam and this young man was sailing with the Merchant Marines out of Australia. We were headed to China, from Port Albany in Western Australia, with a cargo of wheat, although the Australian Labor Party was against our ship leaving. A brief explanation of this China issue is discussed on my absentjustice.com website Chapter 7- Vietnam-Vietcong

I still managed to leave with my ship, the MV Hopepeak, believing I had left those troubles behind me. Apparently not.

When I took refuge in the cabin on the afternoon of 26 October 1989, only to find my refuge attacked by a Police rescue team, I was transported straight back to China in 1967. After some heavy discussions with my wife and my ‘saviours’ who, in my confused state, seemed more like the Red Guard soldiers than anything else, I was taken to hospital — in a straight jacket.

I will be forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who allowed me to return to the camp the following day, accompanied by my mate’s wife, Margaret. I will also be forever grateful to Jack for sending Margaret to ‘bail me out’ so to speak. The fun, however, had just begun.

CHAPTER 3

Margaret and I arrived back at the Camp to be confronted with a disaster area. Faye of course had gone the night before, following advice from various ‘do-gooders’ and welfare people who insisted that she needed to be in a ‘safe house’. Various doors had been left unlocked, meat had been taken from the deep freeze and left on benches, the deep freeze itself was gone. Every time we turned around we found another problem to confront. And, according to my diary, 70 or more students from Monivae Catholic College in Hamilton were due to arrive on the twenty-ninth, two days away. The students were booked in for five days and four nights. Without Margaret’s unfailing assistance I would have been wiped out.

Cleaning and shopping were at the top of the agenda. In my heartbroken state, mourning the end of a 20 year marriage, the shopping list alone was a mountain I had to climb. What to feed to 70 students plus staff? Finally I got my head around how much meat and dry foods to order but it was already Sunday evening and the Monivae group were due the following day; the first meal they would need was dinner.

Then the hot water service broke down. The staff were not so happy about cold showers! Even so, from then, through to 1994, Monivae College returned to the camp two and sometimes three times a year. Their support throughout this awful period was much appreciated: it kept me trading.

I realised that Margaret was becoming increasingly worried about my mental health when she invited Brother Greg, one of the Monivae teachers, to the house to talk to me. Later I discovered that I had been rambling on in my sleep the night before, much to Margaret’s consternation.

I knew Brother Greg reasonably well and, with Margaret holding my arms and Brother Greg holding my hands, we talked well into the night, working through everything from my experiences in China to the end of 20 years of marriage.

Margaret had been thrown in at the deep end and she carried so much through those 6 or 7 days. Her support was invaluable.

Religion also played a part in bringing me back from the brink to face the task ahead. Many of the women from the church came to help me keep the camp running and to hold me back from tumbling into despair again. But I missed Faye. Like anyone who has separated after so many years, I missed the touch and the caring of another, close human being.

Through all of this, phone problems continued. Around mid-November of 1989, Chris, one of the women from the church, mentioned in passing that I must have forgotten to switch on the answering machine the day before: she’d rung but the call just rang and rang before finally cutting out. By this time I had already lodged complaints with Telstra’s fault centre in Hamilton and I had begun to keep a log of phone faults and customer complaints about the phone: I was recording all complaints I received in an exercise book, together with the names and contact information for each complaint. I also noted the effect these lost calls were having on both the business and on me.

That same day Chris went to the phone in the Kiosk at the camp to phone out. The line was dead. My first thought was “A loose wire somewhere.” and so I removed the cover from the phone connection box to locate this ‘loose wire’. Both Chris and I checked the socket but everything seemed intact. Still the line remained dead.

At this point I had a brain-wave. I would try the customer’s coin-operated gold phone in the main dining room. This phone had a normal dial tone and was apparently working OK, so I dialled my office number, only to hear the dreaded voice again:  “The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.” Of course, I actually had been charged for the call because the coin-operated gold phone certainly did not return my coins.

Five minutes later, after a trip to the main office for more change, I tried ringing again from the gold phone. This time the office phone appeared to be engaged (although, of course, it wasn’t) and the phone happily regurgitated my coins.

I used this testing routine, and others invented along the way, more and more frequently over the coming months but the situation was beginning to tell on me. Why was this still happening after so many complaints to Telstra. Was no-one paying any attention in there?

January 1st 1990 rolled around and I had a group staying at the camp over the holidays. Mrs Yasemin Sevik, one of the group, complained that the gold phone was not working. I duly recorded this complaint in my log-book and refunded Mrs Sevik’s money.

Later, during 1993, I hand delivered eighteen A4 pages of itemised phone complaints, including dates, times and names, to the St Kilda Road office of the then Shadow Minister for Communications, the Hon. Senator Richard Alston. These 18 pages included 183 logged faults, dating from late 1989 through to May 1993, as well as 53 written complaints from clients and tradespeople who had also taken the trouble to document their own experiences when trying to reach me on the phone. Mrs Sevik was the first complaint for 1990 and, by the 4th of March that year, I had ten more complaints on my list.

CHAPTER 4

Since I was no longer one half of a working husband and wife team I continually had to dig deep into my almost non-existent financial reserves to cover labour costs, or risk losing everything. With Faye gone I was suffering what is commonly known in the world of finance as a ‘consequential resultant loss’; now I had also had to begin to pay Faye a yearly dividend on her financial investment in the business, even though she was no longer contributing her unpaid labour, plus I had to find the dollars from somewhere to pay staff.

As we headed further into 1990 the future looked grim. The phone faults were no better; who knows how many prospective customers were lost because they couldn’t reach me by phone? Because the camp is in a fairly remote area, phone was the only access city people had.

By now the legal vultures were circling.   I hadn’t been able to abide by the original financial agreement with Faye and her solicitor was demanding more money for his client. My first payment to her came due and I couldn’t raise the funds to re-finance. I was having trouble meeting my own legal costs, let alone finding extra for Faye. My son’s $3000 school fees were overdue and I had nowhere to turn. I couldn’t think beyond today. The outlook could never get any bleaker I thought. How wrong I was!

In order to pay some of the mounting debts, I had sold the 22-seater school bus I had originally used to ferry customers around, and purchased a small utility in its place.

Through mutual friends, I had met Karen, a divorcee from Warrnambool, some 100 kilometres away. At least the little ute meant I could see Karen a couple of times a week and the relationship developed to become quite serious. When Karen heard that Faye’s solicitor was about to wind up my business, forcing me to sell because I couldn’t raise the funds to make any more payments to Faye, Karen put her house up as security for a loan, thereby giving me two years of breathing space.

At about the same time I again contacted Telstra’s fault centre in Hamilton to find out what, if anything, Telstra was doing about the continuing phone problems at Cape Bridgewater. As usual I got the run-around but I was finally informed that a new exchange, about to be installed at Cape Bridgewater, would alleviate all the problems I had suffered in the past. Some four years later, as a result of an FOI request, I acquired a copy of a three-page, hand-written file note dated 15/8/91 which covers the discussions I had with Telstra regarding these faults. The date doesn’t correlate with my own records because I knew early in 1991 that Telstra were installing a new exchange and I had, in fact, told Karen, early in 1991, that this improvement would solve the phone problems and assure us of a bright future. This file note stated however:

“Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it’s not engaged — two calls from Collingwood PM 14/8/91.

This has been a continuing problem and he is losing a lot of business.

I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs.  (refer Glossary for definition of RCM)

I also said we would have a look at the service now to try and get it working correctly until cutover.”

This note goes on later to say: “I rang Alan Smith 15/8/91 and explained that we believed the problems were caused by — specific exchange faults due to the age, which would be solved by the cutover to Portland AXE ......”

At least someone in Telstra had given us something to hang on to. We looked forward to the installation of the new exchange in July 1991 although I continued to log another 46 faults and customer complaints between 16th March 1990 and cut-over day, which turned out to be 18th August 1991, not July as we had originally been told.

CHAPTER 5

My relationship with Karen continued well as we worked together to attempt to pull the business out of the doldrums. Karen finally sold her house, raising a bit over $80,000, $65,000 of which went directly to pay my legal fees and to pay Faye most of what I owed her. It took me another 12 months to finally pay her out. Karen’s name was now officially on the title to my business.

Still very few new bookings were coming in and the camp was now badly in need of some maintenance work. This created a flow-on effect: the business looked sad and bedraggled without the necessary painting and upgrading and so people who passed by were not interested in staying. Because they were not coming to stay there was no money to effect the repairs and no ‘word of mouth’ recommendations being passed on.

On those rare occasions when a school or club did manage to get through and book in, we had no cash flow and so we couldn’t get credit to buy even the necessary food to feed the clients when they arrived. The operational side of the business began to look even grimmer.

Karen and I began to argue just as Faye and I had earlier argued. Karen could see her investment fast going down the drain and she began to ask why I had not told her the truth. “It’s now twelve months since I moved here and nothing has changed — the phone faults are no better!”

During all this time I continued to sponsor under-privileged groups to stay at the camp. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Much of the organisation for this week, including arrangements regarding food, organising a bus to collect the children, decisions about where to collect the children and discussions about any special needs the children might have, had to be handled over the phone since Ballarat was a 3½ hour drive from Cape Bridgewater. Of course, Sister Burke had enormous problems trying to contact me because of the phone problems.

Finally, after trying all through one whole week, Monday through to Friday, Sister Burke decided to drive the 3½ hours to make the final arrangements.

At this same time Karen and I had also been attempting to organise a series of ‘get-away’ type holidays for ‘over-40s’ singles clubs. These plans were not going very successfully: the response to our ads had been very poor (or was it just that no-one could get through on the phone?).

On the Saturday that Sister Burke decided to drive to us, just as she finally arrived at the Camp, Karen took a phone call from a very irate man who wanted some information about the singles week-ends. This caller was very angry and quite abusive and Karen took the full brunt of his fury. He couldn’t understand why we were advertising a business but never answered the phone.

Karen burst into tears: this was just the final straw as far as she was concerned. I tried to make a joke of it to relieve the tension by saying something about the problems we have dealing with the public. Now, Karen was then, and still is, a fine ‘horse lady’. She rode in cross country races and played polo amongst other things; she’s not someone you cross unthinkingly. And she can sure pack a punch! I know, because she almost flattened me that day. Not only did my legs fold under me, but my ego went the same way. And Karen continued to sob. Right at that moment Sister Burke appeared in the office.

I decided that absence was the better part of valour and removed myself, leaving these two fine ladies together. Finally, quite some time later, Sister Burke advised me that she thought Karen should leave Cape Bridgewater. It would be in the best interest of both of us, Sister Burke believed, and she would arrange counselling for Karen back in Warrnambool — here we go again, I thought.

The charity camp went ahead in April 1992; 35 children for five nights. It was a great success all round. While she was at the camp I asked Sister Burke to describe the phone faults she experienced in that dreadful week before Karen left. She referred to calls either ringing out or simply getting a dead line — no sound at all. And this happened for an entire week. Later I sent Sister Burke a very early draft copy of this book; after reading it she wrote back, saying “Only I know from personal experience that your story is true, I would find it difficult to believe.”

It is interesting to note here that, twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, also tried to make contact to arrange an annual camp.   Sister Donnellon later wrote:

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”

Twelve months had passed and still there was no improvement to the phone system, even with a new exchange installed in Cape Bridgewater.

Back in May of 1992 however, we could not know, of course, that the stress created by the faulty phone system would continue for so long.

Karen was hospitalised as a result of this stress added to the worry that she would lose her investment in my business. She had come to believe that I had lied to her when I reassured her that the phone problems were over. I later learned not to believe anything I was told by Telstra.

After she left the hospital, Karen settled in a rented house in Portland. Without her assistance at the camp, which had, in the past, given me space to travel around, my promotional tours to schools dropped to almost nil. Still I continued to complain to Telstra about the phone faults which seemed to me to be getting worse, not better, since the old exchange had been demolished and replaced. From August 1991 through to May of 1992 more and more complaints of recorded voice announcements came in.

Again I began to question my decisions. Why had this move to Cape Bridgewater been so disastrous? Everyone takes a working phone as a given, but a faulty phone system had now ruined three lives; mine, Faye’s and Karen’s and, indirectly, my two children’s as well.

CHAPTER 6

In July of 1992 I spoke to the proprietor of O’Meara Bus Company regarding proposed arrangements for his buses to bring elderly groups to my camp on a regular basis. Mr O’Meara had, of course, suffered severe difficulties trying to reach me by phone and he was concerned that this would become an insurmountable problem. As he saw it, each of the groups would need to ring me direct to confirm their bookings. What if they couldn’t get through either? he asked. And so, without mentioning the name of the bus company, I wrote to Telstra to ask them to provide me with a written guarantee, stating that my phone service was up to network standard. Naturally I intended to pass this guarantee on to Mr O’Meara.

At about the same time, Karen mentioned a friend who had heard of someone in Melbourne who was complaining about the same phone problems that were crippling my business. Karen said her friend believed this was the proprietor of “The Society” restaurant in Bourke Street, in the centre of the city.

Of course, making phone contact with the restaurant was enormously difficult, but eventually I got through to Sheila Hawkins, who ran the restaurant. We arranged to meet and I travelled to Melbourne.

Sheila was also very interested in gathering a group together to tackle Telstra head-on. She already knew of an Ann Garms in Brisbane who ran the Tivoli Theatre Restaurant there and who was also having serious phone problems.

Armed with this knowledge I rang Ann and, as it happened, Ann was coming to Melbourne the following week. It was arranged that, while she was here, Ann would meet with the General Manager of Consumer Affairs for Austel, the Australian Telecommunications Regulator, and with Sheila.

Sheila, Ann and I had an enthusiastic meeting and Ann mentioned that she knew of at least one other Brisbane business that was in similar trouble with phones — a Japanese car spare-parts company run by Maureen Gillen. Like Ann’s business, Maureen’s business was also trunked off the Fortitude Valley Exchange.

By this time Sheila had contacted Graham Schorer who ran the Golden Courier Service out of North Melbourne. Like the rest of us, Graham had a very bad phone service. Finally our little group gathered together at the Society Restaurant in Bourke St, except for Maureen who couldn’t make the journey from Brisbane.

During the following week I spoke to Sheila a couple of times on her mobile, ringing while she was on her way in to her office. It was Sheila who suggested we call ourselves C.O.T. — the Casualties of Telstra. We were on our way down the path to justice, or so we thought. Unfortunately our battle had only just begun.

I still don’t know how I managed to drag myself through the last few months of 1992, but I did. And now the lies and corporate cover-up perpetrated by Telstra began to be exposed.

In October of 1992, at the Ibis Hotel in Melbourne, the COT group had our first official meeting with Telstra, presenting a united front of small-business telephone users.

Austel was now involved, concerned at some of the facts that the COT group were unearthing in relation to Telstra. We were seen, not just as a group of hot-heads, out to make trouble, but as a concerned group of small-business people who had been continually squashed and ignored by Telstra. Finally we felt that our claims were being taken seriously and were being seen as valid.

Also at this time, July/August 1992, I lodged the first of many FOI requests for documents to be supplied by Telstra. A letter dated 2nd July 1992, from a Mr Taylor (part of Telstra’s management team based at the Warrnambool exchange) stated however that Telstra had ‘no past fault records prior to June 27, 1991’. It later became quite apparent that documented fault records DID exist in Telstra’s archives, dating back as far as 1987 and continuing for many years after that. What else could be lurking in these archives, I wonder?

On 1st September 1992 the first Telstra ‘guarantee’ arrived, stating that my phone service was indeed ‘up to network standard’. Sixteen days later another ‘guarantee’ arrived, this one dated 18 September 1992. The ‘guarantee’ of the 1st stated:

“Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted.”

The ‘guarantee’ of the 18th stated:

“We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours.”

Because of the delay between my initial request and the provision of these belated ‘guarantees’, I had already missed out on securing the charter business with O’Meara’s Bus Lines. Later however, these documents became more important as we uncovered the extent of the skulduggery at management level within Telstra.

While visiting the camp, a local Telstra technician casually remarked that it was well known that congestion was a problem in my area. His attitude seemed to be that this was something country people just had to learn to cope with. I thought it seemed to be a very strange way of looking at the problem, particularly since my business was ‘going down the tubes’ fast. Why should I have to put up with a faulty phone service simply because I ran a country business?

During an FOI release in mid-1994 I came across four interesting documents which all related to this congestion problem. The ‘minute’ document titled “Subject PORTLAND - CAPE BRIDGEWATER PCM HBER”  and the document marked as FOI no. A40558 are of particular interest. The second paragraph of the first document contains the statement:

“ When the ‘A’ direction of system 2 was initially tested, 11,000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.”

In other words, back in July of 1991, Telstra were uncovering 11,000 errors per hour in one direction and 216 per hour in the other direction when the acceptable level in the telecommunications industry is 72 errors per hour. Furthermore, document A40558 states, in part:

“i)        LTS Melbourne were aware of the problem in early 1990 as optocouple measurements were documented on file dated 13/02/90 (ref P 34)

iii)        Tong advises me that to his knowledge LTS Melbourne did not circulate any information on the problem until the work specification was finalised in October 1990.

iv)        The Cape Bridgewater loop MUX was up graded between July and December 1991 after it was removed from the Cape Bridgewater link.

v)         The Cape Bridgewater customer had documented complaints of call dropouts from 12/1989 to 12/1992 the later date some 7 months xx after xx the A735 loop MUX had been replaced by the RCM.

The question remains - why did it take one year for the Cape Bridgewater Loop Mux to be upgraded from the issue of the Work Spec. Tong says the OIC of Portland believes that the equipment was not touched prior to the upgrade.”

Obviously the technicians were uncovering faults and problems with the Cape Bridgewater phone system as far back as at least 1990, probably as a result of my continual badgering of them, but I was being told one thing while Telstra knew another. Here I was, with a business ‘bleeding to death’ and without any treatment available to stop the ‘bleeding’. If the business wasn’t bleeding, it certainly felt as if I was.

The third of these four interesting documents was titled “Portland — Cape Bridgewater — RCM System” and it stated, in part:

“Initial reports were of a vocal customer at Cape Bridgewater complaining of VF - cutoffs in one direction. The customer had been transferred off system 1 onto system 2 and 3 on the 24th February ‘93 and had experienced no further problems.”

I must admit that my sense of humour did manage to fight to the surface for a moment when I read this — ‘vocal customer’ indeed! Maybe this is why my voice has lost its customary strength. The interesting point is, of course, the reference to switching the ‘vocal customer’ from system 1 to systems 2 and 3. Since Telstra were aware of this problem when I complained, first in 1988 and again in 1990/91, of 11,000 errors per hour in one direction and 216 per hour in the other direction, why didn’t this changeover take place then?

As if this all wasn’t disturbing enough, in a letter dated 12th July 1993, the following information refers to 2 March 1993, 19 months after Telstra discovered the massive fault rates recorded above.

“Initial error counter readings

            Portland to Cape Bridgewater direction:-

System 1

System 2

System 3

SES

0

0

0

DM

45993

3342

2

ES

65535

65535

87

At this stage we had no idea over what period of time these errors had accumulated.

Attempts to test the inground repeaters using the “TRIOS” system where unsuccessful as the strapping records could not be located.”

The two FOI documents on the following pages show that thousands of errors continued to plague my service. It seemed nothing had changed - just more excuses from Telstra’s Corporate Management.

It is interesting to note the reference “we had no idea over what period of time these errors had accumulated” because the second page of this document states:

“The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.”

In other words, they didn’t know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had not been connected up. Since this was an un-manned exchange, this meant that no-one would know when a fault or faults occurred. Except, of course, the poor, defenceless customers.

This ‘not connected’ alarm was not discovered until March 1993 but, in September / October of 1992, Telstra senior management had written to me stating that they believed that the quality of my telephone service could be guaranteed as up to network standard when, just 5 kms down the road from my business, the exchange continued to accumulate errors with no alarms going off at the ‘manned’ Portland exchange. What a farce!

No wonder my ‘could-have-been-thriving’ business was sinking so fast. It seems like most of the local telephone technicians were oblivious to the continuing resultant call loss due to this ‘not connected’ alarm system in the exchange.

Here I was, scratching the bottom of the financial barrel, selling off anything I had left that was saleable to keep going and buy food for the next group that had managed to get through to make a booking because many schools and other groups do not pay up-front when they make their booking.

Meanwhile, until a group actually paid their bill, I had no money to pay my catering costs or wages. I was now borrowing from friends just to keep the camp running on a day to day basis. Karen, with three children to think about, was devastated by her financial losses and had lost all faith in my judgement. I had lost faith in my own judgement by this time too; I had now let down two different partners who had trusted me. Through all of this, of course, the phone faults continued and the useless ‘guarantees’ supplied by Telstra sat on my desk, a continual reminder that they had arrived too late: I had lost the charter with the bus line.

The COT group continued to negotiate with Austel and Telstra and this pressure finally produced results: Telstra approached me with a proposal for a compensation payout which was to include a confidentiality agreement to the effect that I would not disclose the value of any settlement which might be forthcoming as a result of this. I signed this agreement on 11th December 1992 and I have honoured this agreement not to disclose the amount of the payout without prior approval by Telstra.

That same day, Telstra’s area general manager and I were involved in a long discussion regarding what Telstra believed I had lost, financially, over the preceding 4½ years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and trades-people, describing their experiences with my phones. I clearly explained how much I had calculated my losses to be.   On a number of occasions the manager left me alone to examine documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and she added that, if I needed to discuss anything with my advisors I was free to use the telephone; there was a direct outside line available at all times so I wouldn’t need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer and we calculated how much she needed to buy herself a relocatable house to set up as her home, thereby at least partly restoring her to a financial position similar to her position before she met me.

The documents provided by the manager were mostly hand-written and included copies of the so-called ‘guarantees’ that I had received. One of the hand-written documents stated that there had only been a single fault, lasting for 3 weeks, and causing the RVA message to be heard by incoming callers (this was the message stating that my number was not connected). This document also stated that the RVA message probably caused me to lose about 50% of all incoming calls over this 3 week period. Other documents referred to one minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. Telstra agreed to accept responsibility for these ‘minor’ faults, without admitting to anything in writing, if I agreed to their offer.

Naturally I protested. Again I went over the continuing and constant complaints I was getting from customers and I asked how a few ‘minor’ problems could possibly cause so many difficulties. I had nothing to bargain with however and the manager simply took a ‘take it or leave it’ position, commenting that this was Telstra’s last offer and advising me that the only other avenue I could follow would be court proceedings. Her final comment was along the lines of ‘Telstra has more time than you have money to fund court proceedings.’ These wonderful customer relations, I believed, left with me no other option and so, finally, and with some regret, I accepted their ‘final offer’.

Later, during 1994, I was provided with a copy of a document which shows that, while out of the meeting room, this same area general manager had made notes regarding our discussions, including a reference to the fact that I had rung my advisors on a number of occasions while she was out of the room. If the phone line I was using was a direct line to the outside, how did she know whether I used it or not? And how could she know who I rang if I did use the phone? I have since, unsuccessfully, asked Telstra to explain this on a number of occasions. This issue has also been raised with the Senate and with the Telecommunications Industry Ombudsman (TIO - refer Glossary). So far there has been no satisfactory answer. The questions remains: were my private phone discussions that day listened to by someone and is this how the manager knew exactly how much to offer me, because she had heard the discussions I had with Karen regarding the cost of buying her a relocatable house?

Pages 111 and 112 show that Telstra officials later provided the Australian Federal Police with documents which confirmed that Telstra had listened to my private and business phone conversations (called ‘voice monitoring’) for some time. Was this one of those occasions when Telstra people were listening in?

CHAPTER 7

These ‘secret’ Telstra documents relate to the so-called ‘guarantees’ that I had received from Telstra. The last item included in point 4 of the document numbered C04006 refers to “RVA on congestion” This RVA was, as previously mentioned, the message indicating that my phone had been disconnected. Also, during 1993, Austel confirmed that Telstra’s ‘congestion’ tone was very similar to an engaged tone and, unless you were aware of the difference (and most people certainly wouldn’t be aware of the difference) callers would believe they were hearing an engaged signal when they were actually hearing a ‘congested’ signal. Because the local Cape Bridgewater exchange was such old technology with so few lines, of course it was congested — it was probably nearly always congested! This meant that it was quite likely that many prospective customers gave up trying to reach me because they believed I had ceased trading. No wonder I didn’t have many new bookings.

At point 16, on the page numbered C04007, there is a reference to “... — Mr Smith’s service problems were network related and spanned a period of 3 - 4 years.” and then, on the page numbered C04008 another reference “Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.” According to the hand-written, note at the bottom of C04008, signed by the area general manager I had dealt with before,  “These are preparational notes recorded at the time of settlement. Alan Smith was not prepared to provide better substantiation of his claim.” This seems to me to indicate that the writer was quite clear, in her own mind, about the severity of the faults I had suffered and, since she obviously already knew of the “poor grade of network performance” spanning “a period of 3 - 4 years”, how could she possibly have provided the two guarantees that I received three months before this? This is even more astounding because document C04008 also states “with some difficulty to detect exchange problems in the last 8 months” . This means that the ‘difficulty to detect’ the problems dated back at least to April of 1992. As a responsible corporate senior manager, how did this person ever allow the two ‘guarantees’ to leave her office?

CHAPTER 8

The information in this document is interesting, bearing in mind the two ‘guarantees’ of September 1992, and the fact that Telstra knew that at least one fault had been occurring for 8 months.

Although I had the ‘guarantees’, I continued to complain about the faulty phone service, particularly call-drop-outs when, part-way through a conversation, the line would simply go dead, and about short duration rings when the phone would ring once or twice and then stop — with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called ‘Elmi’ machines - refer Glossary) to be installed; one at the local un-manned exchange at Cape Bridgewater and another at my office. These two machines were set up to work in conjunction with each other.

On 13th October I complained of four calls that had dropped out, at 1.20, 1.40, 2.00 and 3.00 and a single time when I had answered the phone to find a dead line. The Telstra technicians found, as they had in many instances before, no faults that they could detect.

I continued to work at getting my business running successfully and, at the same time, kept trying to sort out the continuing phone problems.

Two years later, in 1994, as part of a bundle of documents sent to me in response to one of my FOI requests, I discovered two documents relating to the problems I had encountered on 13 October 1992. The first was a hand-written file note stating “We had the Elmi disconnected at the RCM (exchange) and were installing it at Mr Smith’s house and the CCAS showed no evidence of above (not receiving ring) 1.20, 1.40, 2.00 and 3.00.” (refer Glossary for definition of CCAS)

The next step was to ask Telstra, through FOI, to supply any ‘Elmi’ print-outs they had from September/October 1992. Some weeks after this request was lodged a number of documents arrived which I found quite alarming, including the tapes reproduced on the previous page, which show that the call drop outs and dead lines that I had experienced appeared on Telstra’s monitoring equipment records as answered calls at 13.29.25 (approximately 1.30pm) and 15.01.11 (approximately 3pm).

The issues surrounding the ‘Elmi’ incident become even more alarming and one question that has never been satisfactorily answered is: Why would a local technician state that the ‘Elmi’ equipment was disconnected at the exchange and was to be installed at my house when it is clear from these two ‘Elmi’ print-outs that it was actually installed and operating correctly at both locations?

All this obviously brings Telstra’s fault centre into question. How accurate are their records and how often are complaints like mine ignored by Telstra?

By this stage of the battle, with two partners lost and my health deteriorating, my business began to suffer even more. Why would no-one listen to what the members of COT had to say? Why would no-one look at all the information we had collected between us?

The members of COT continued to draw strength from each other. We had many group discussions as we tried to find a satisfactory way to deal with the deception of Telstra management but we were, after all, simply five small-business people struggling against the might of a huge corporation. Not very good odds!

As we struggled from the end of 1992 to the New Year of 1993 I began to wonder if ‘settling’ with Telstra (via the area general manager) had been such a good idea after all. Nothing had changed. Phone faults continued to run rampant with my attempts to keep the business going. How could this be still continuing? The new telephone exchange was supposed to have rectified all the problems I was suffering.

During January 1993 I registered eight more faults with Telstra. Those customers who had managed to get through to place their bookings were also experiencing phone faults when they arrived at the camp. The coin-operated gold phone unit in the main hall, installed for customer’s use, became the butt of continual jokes. “Why bother to go to NSW to play the pokies?” the customers joked, “We can just come here and get the same result with the gold phone: it takes our money, gives either no service at all or very little value for money, and leaves us as frustrated as if we had gambled away our cash.” Calls continually drop out, they complained, as soon as they said “Hello”.

According to my records, two of the eight complaints lodged in January 1993 were related to the gold phone.

By this stage my mortgage payments were causing a huge headache. I had been forced to re-finance through the Commonwealth Development Bank, incurring more set-up fees, and because I couldn’t afford to maintain the camp buildings properly the place was beginning to look abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!

Ann Garms and Graham Schorer had, by now, become ‘comrades in arms’ in this war we were fighting. We wondered if we could ever be in a position to expose Telstra’s unethical corporate strategies and their continued and apparently deliberate mis-handling of our complaints. Ann had also begun to suspect that, on the rare occasions that our phones actually worked properly, the lines were being bugged.

The first experience I had of the possibility that my phone was bugged came after the COT group had been on “A Current Affair”, a news show on Channel 9, a national TV channel. This was our first experience of an interview situation and we soon discovered that we were novices at this process. We had a lot of technical information to back our legitimate complaints about phone faults and to support our attempt to organise a Senate hearing into our cases but, because of our inexperience at putting our case, this is not quite how it came across on the show. Because our information was so highly technical it was a bit like trying to prove that a patient has cancer without actually having a biopsy or an x-ray.

Because we were so disappointed at how our case came across on Channel 9, I rang the Australian Broadcasting Corporation (ABC) in Melbourne to speak to the co-ordinator of their “Four Corners” show, in an attempt to get another chance to tell our story to the Australian public. I was told that the person I needed to speak to was based in their Sydney office (I believe his name was Knight) and that my call would be transferred to him. I was quickly connected and proceeded to describe what had happened with ”A Current Affair” and to explain that I thought a more in-depth investigation of our situation by a program like “Four Corners” would expose Telstra’s incorrect charging as well as the problems with their fault reporting system, thereby alerting the rest of Telstra’s customers.

After I had babbled on for quite a while, I referred to the co-ordinator by name, only to be told the person I was speaking to was not “Mr Knight”, but John Stanton. Furthermore, Mr Stanton was not with the ABC “Four Corners” show either. He was not even with the ABC at all. He was, in fact, a senior executive with Telstra, based in Telstra House in Sydney.

“How can this be?” I asked, “The ABC in Melbourne switched me directly through to their Sydney office.”

Mr Stanton paused for about 20 seconds and then confirmed that he had indeed patched into my phone line even though I was connected elsewhere. He then suggested that he would set up a meeting with the members of COT, if we so wished.

So, with Ann already worrying about her phones being bugged from some time in 1992, I now had been through the same experience

CHAPTER 9

It is interesting to note the date of 19/08/92 on the first of these two documents relating to Ann Garms’s business, The Tivoli Theatre Restaurant: this is about the same time as the COT group was first formed.

In the comment at point 19, “Description: Line 1 NDT NRR suspect sabotage ?????” the ‘NRR’ refers to ‘not receiving ring’ and, at the bottom of the document, at points 1, 2 and 3, the comments are even more interesting and will be covered more fully in Chapter 18.

The second document, with the number B00474 in the lower right corner (see following page), also relates to Ann’s business and raises a number of other questions. Who are these people discussing in this letter? Does the reference to “Compass Security” refer to Compass Airlines who were linked to the same exchange as Ann, in Fortitude Valley? Compass Airlines was a small airline company which tried to break into the system in Australia and finally went bankrupt. The owner of the airline stated that one of the reasons for the company never ‘getting off the ground’ was continual problems with phones and it was widely speculated in the media at the time that some form of sabotage had been involved. This document certainly doesn’t do anything to dispel that rumour.

Another question that this document raises is why a ‘bug scanning device’ was requested by AA (whoever that is) of protective services?

After reading these two documents it is easy to understand how Ann and I felt every time we used the telephone. Who was listening to us and why?

Graham Schorer was elected as spokesperson for COT and, early in 1993, he met with the then chairman of Austel, Mr Robin Davey. By February / March of that same year, following that meeting, a number of politicians had become interested in our situation. The question remained, would these politicians actually take any action on behalf of small-business people, or would they protect the ‘milking cow’ of the Telstra corporation?

So the COT group began their push to get the Australian Senate to pay attention to our plight, providing the finance from our already depleted own pockets for travel to and from Canberra, where the seat of power is located.

At this stage I was still suffering from major problems with the phone system although, through some fancy footwork with the banks I had at least managed to stave off a repossession order.

As a result of all the pressure, Karen had become a born-again Christian. Would her prayers be answered though? I knew she was asking for help for us all in our ongoing fight for justice but would Telstra’s true colours ever be exposed? Their power over the Senate was becoming more and more apparent to us and we were afraid they would have enough control to put a lid on the whole saga.

By now I had accumulated more than seventy separate letters of complaint from customers who had been unable to reach me by phone. One of these, dated 5/2/93, came from a Mrs Elsie Teer of the Werribee Outreach Centre in Victoria, writing to say that they would have to cancel their booking because of ‘poor membership response’. Mrs Teer also noted that she had tried to ring me over the last five days but that ‘it appears that you don’t answer your phone’.

I later received a letter dated 17/5/93 from Ray Morris, a senior Telstra technical engineer. Mr Morris wrote regarding his own experience of trying to ring me, stating:

“On the 24/2/93 I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267 - I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts ie: “answered” and I received a loud noise similar to a radio carrier noise and a very faint ‘Hello’.

At least someone inside Telstra acknowledged that I had a problem with the phone service!

The really significant point to Mr Morris’s letter (see next page) however is not just his recognition of the problems I had. On 12/12/94 Mr Morris made a Witness Statement, in the form of a Statutory Declaration witnessed by a lawyer. This Witness Statement was used by Telstra as part of their defence of my arbitration (refer Glossary). There is no mention of Mr Morris’s own experience with my phone anywhere in this Witness Statement.

Mr Morris appeared to be more than just a little concerned about my complaints during the time he was involved in these investigations. Perhaps he was pressured to stay quiet during my arbitration — who knows? What is apparent from a number of FOI documents is that not all Telstra engineers or technicians treated our complaints as genuine, as the following example shows.

The official spokesperson for COT is Graham Schorer and, on one occasion I phoned Telstra’s 1100 number to report difficulty in getting through to him on the phone even though he has thirty-seven lines in to his courier business. I spoke to a Mr Richards at Telstra; he advised that he would immediately have Mr Schorer’s lines tested. Some months later I came across FOI document K00045. In this document, Mr Richards has made a hand-written note to the effect that, once it ‘clicked’ that this was a COT member, the service was not tested.

In a second, similar incident, I have an un-numbered FOI document regarding a complaint I lodged about my own phone service, this time to a Mr Watson. Mr Watson’s hand-written notes state:

“Probably caused by ‘RCM’. No need to investigate, spoke with Bruce, he said not to investigate also.”

Either Telstra had decided that the members of COT were fools or their fault center knew that the faults we were reporting were common faults which could not easily be rectified and so they had decided to ignore our complaints rather than attempt to fix the problem.

CHAPTER 10

In the first five months of 1993 I received another eleven written complaints, including letters from the Children’s Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business, unabated, from April 1988 to mid 1993.

Coming into June of 1993 things began to warm up for COT: the then Shadow Minister for Communications, the Hon. Senator Richard Alston, was showing an interest in our claims and Senator Ron Boswell of the National Party, who obviously had no political gain in mind, became involved also. Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, at the other end of the country, he has continued to offer his support.

David Hawker MP, my local parliamentary member was another who saw his ‘duty of care’ to his constituents and so answered our call for help. Mr Hawker has continued to go into battle on our behalf for ten years now.

During political campaigning through June of 1993 both Senator Alston and Senator Boswell pushed for a Senate Inquiry into our claims and, I have recently been told by an ex-Telstra employee, they were so close to pulling it off that it was not funny. If this Senate Inquiry had got off the ground, heads in Telstra would have rolled but, since this didn’t happen, those same ‘heads’ continue to control Telstra to this day.

While the politicians and Telstra conducted their deals behind closed doors, I continued to lobby Austel for assistance and, between February and June of 1993, I provided Austel with more and more evidence of incorrect charging on my 1800 free call service and all the other lines servicing my business. Finally John MacMahon, General Manager, Consumer Affairs at Austel asked me to record all the short duration calls and RVA’s that were still being charged to my 1800 account and which were also showing up on the ‘Elmi’ testing machine which had been installed at the local exchange.

You will see as you get further into this story that there is clear proof of already existing technology which allows faxes to be diverted, printed off and redirected without the sender’s knowledge or permission. If faxes can be diverted in this way then it is not a huge jump to assume that phone calls can also be secretly diverted, although phone calls would have to terminate at the phone they were diverted to, of course. Were all these short duration calls that I was continually receiving actually calls which began to ring at my business and were then caught and diverted to another number?   In the early days, it didn’t even occur to me that this could be the explanation. Now that this saga is so much further ‘down the track’ however, it seems to be a very likely scenario. If I am right, what are the ramifications for other telephone subscribers?  (This diversion of calls is discussed in more detail on page 177.)

Not only were Austel involved in the saga by this time, but we were also dealing with the Commonwealth Ombudsman’s Office as well, so both these organisations were aware that I continued to ask Telstra, under the rules of FOI, to provide me with copies of the ‘Elmi’ data from the RCM that the camp was connected to, for the period of May to July 1993. It is now 5 years since my first request for this data and all I have so far received is information covering a single 6-day period during May of 1993, which I came by accidentall

CHAPTER 11

As a result of my constant complaints to Austel regarding the many phone faults I had suffered with, including the incorrect charging, Telstra’s ‘Network Investigations’ department were finally involved and, for the very first time in this saga, Telstra investigators were sent to Cape Bridgewater. At last, or so I thought, I would be able to speak directly to people who knew what they were talking about. At last, or so I thought, I was getting somewhere.

THE “BRIEFCASE SAGA”

Dave Stockdale and Hugh Macintosh of Telstra's National Network Investigation Division arrived at my office on 3 June 1993, with what later transpired to be a briefcase full of magic tricks. We spent some considerable time ‘dancing around’ my summary of the phone problems I had been complaining about, with little input from Stockdale and Macintosh and with more and more anger and frustration on my part. Finally they prepared to leave and head back to town. My own transport was, by this time, long gone: sold to pay some of my mounting debts, and so Stockdale and Macintosh offered me a lift. Along the way they stopped briefly at the local exchange at Cape Bridgewater where Stockdale took a tape from what I later learned was one of Telstra’s ‘Elmi’ machines. Then he replaced it with a new tape which he threaded into place.

After spending some time in Portland I got a lift back to Cape Bridgewater with a neighbour. In my office I found that, lo and behold, Aladdin had left behind his treasures: The Briefcase Saga was about to unfold.

When I found that the briefcase was not locked, I opened it to find out who it belonged to and discovered that it belonged to Mr Macintosh. There was no phone number in the case that I could contact Mr Macintosh on directly so I was forced to wait until the next morning when I could ring my local exchange.

Imagine how I felt when the first thing I actually saw in the briefcase was a file titled “SMITH, CAPE BRIDGEWATER”. After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective. Some of the documents in this file were much too technical for me to understand or interpret. Some of those that I could decipher however dated back to the ex-gratia compensation payment I received on 11 December 1992. Then I froze. I had turned the page to be confronted with the words “Problem 1”.

This document referred to Telstra being aware that the alleged three week RVA fault in March of 1992 had actually lasted for ‘8 months’, not the three weeks that I had been told on the day that I accepted the compensation pay-out. By hiding this information from me Telstra deliberately misled me — this type of deception, under these conditions, is illegal.

Dated 24/7/92, and with my phone number in the top right corner, this document refers to my complaint that people ringing me get an RVA “service disconnected” message with the “latest report” being dated 22/7/92 from Station Pier in Melbourne and a “similar fault reported” on 17/03/92. The final sentence reads: “Network investigation should have been brought in as fault has gone on for 8 months.”

The second document is a Telstra minute dated 2/7/92. This document shows that the local Telstra technicians believed my complaints were correct regarding the ‘service disconnected’ RVA on my line. Further, they also believed that the problem “is occurring in increasing numbers as more and more customers are connected.....”.

In November 1992, after I had received Telstra’s written guarantees stating that my service was up to network standard and just before the settlement arranged by Telstra’s area general manager, Don Lucas of Telstra also wrote to me confirming that the RVA fault had only lasted for three weeks and adding that it caused an average loss of 50% of calls during that time.

Now, on one hand we have Telstra reports that the RVA fault had only occurred for a single period of three weeks and we have other Telstra documents, including the report I found in this briefcase, reporting that the RVA fault had been in existence for 8 months and that the technicians believed I was correct. Which are we to believe?

Other pieces of alarming information uncovered in the briefcase were printout tapes from the ‘Elmi’ machine. These showed 29 short duration incoming calls to my service in May of 1993 alone. These lost calls could very well have been 29 different customers who couldn’t get through. Even worse, four of these calls, which never got through, were charged to my 1800 account! Later I was to provide this information to Austel.

As the weeks passed Austel became increasingly interested in what I had seen in this briefcase. A letter dated 3 August 1993, from Austel’s General Manager, Consumer Affairs to Telstra’s Group Manager - Regulator, Dennis Hambleton, is reproduced below. This letter indicates that Austel have requested an immediate copy of all the documents which were in this briefcase, and which have not already been forwarded to Austel

I sent off a number of Statutory Declarations explaining what I had seen in the briefcase. Later Austel was told that they had all the information which was originally in the briefcase that was left at my office that day, however that was not correct. Late in 1994, among a late release of FOI documents, I learned that Austel had not been provided with some very sensitive material that had been in the briefcase.

After finding this document I sent a copy to the TIO’s (Telecommunication Industry Ombudsman - see Glossary) office with a covering letter explaining how important it was that Telstra had misled Austel into believing they had been given everything that had been in the briefcase.

Another letter also refers to documents in this briefcase. This letter, dated 27 August 1993, was written by Telstra’s Corporate Secretary, Jim Holmes, to me. In this letter Mr Holmes states:

“Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra’s property and therefore are confidential to us.

I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.”

Mr Holmes carefully omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation. The information in this briefcase proved that senior Telstra management had deceived and misled me during these negotiations and, at the same time, provided letters stating that the phone system to my business was up to network standard when the information in the briefcase clearly proved that it was certainly nowhere near ‘up to standard’.

On June 17 1993 the General Manager of Telstra Commercial, Victoria/Tasmania, wrote the following confidential internal memo to the Manager of Network Investigations.

Quite clearly this indicates that not only was Telstra’s area general manager fully aware, at the time of my settlement on 11 December 1992, that she was providing me with incorrect information, but the General Manager, Commercial Victoria/Tasmania was also aware of this deception — a deception which seriously influenced my judgement of the situation.

Misleading and deceptive conduct such as this, in a commercial settlement such as mine, is a direct contravention of the Australian Trade Practices Act but this issue is yet another which has not yet been addressed by Telstra. Even more alarming, the arbitrator handed down his award on 11 May 1995 without questioning Telstra’s unethical behaviour even though I raised this issue in my claim documents, pointing out that Telstra had knowingly deceived me at this settlement meeting, thereby placing me at a commercial disadvantage.

In another letter dated 8 June 1993, Austel’s John MacMahon explains to Telstra that I had complained of continuing phone faults, even after the ‘settlement’. Mr MacMahon goes on to say:

“Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In summary, these allegations, if true, would suggest that in the context of the settlement Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL’s consideration of any action it should take.

As to Mr Smith’s claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made.”

It seems that Austel’s concern regarding the sensitive information I had originally found in this briefcase was warranted!

CHAPTER 12

Back in April of 1993 I had become so concerned about what was going on in the Telstra Corporation and what sort of devastating effect this corporate thuggery could well be having on other small businesses around the country, that I had phoned Malcolm Fraser, ex-Prime Minister of Australia. I told Mr Fraser about the information I was uncovering and how I was finding not only phone faults but also misleading and deceptive commercial conduct which appeared to contravene the Trade Practices Act.

By this time a number of articles had appeared in my local newspaper and interstate gossip about the COT group was beginning to grow. As a result of this Julian Cress from the Channel Nine ‘Sixty Minutes’ program attempted to contact me. This fax speaks for itself.

Also by this time, June of 1993, the public were becoming interested in what they were hearing about our battle.

At Camp Bridgewater, we acquired a logo specially for the over-40s singles club which we were calling “The Country Get-A-Ways” and I hit the road with a vengeance, marketing a range of different week-end holidays. We had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia and a Saturday morning shopping tour to Mt Gambier, also in South Australia. This meant we were able to market the holidays in both Victoria and South Australia.

A special feature in the Melbourne Age Newspaper gave the project a great write-up and I began to feel things were finally looking up for the camp. My spirits rose, at least temporarily. Then another plummet into despair: on 26 October a fax arrived from Cathine, a relative of the journalist who had written the Age feature:

“Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.”

Cathine had been ringing on my 1800 free-call line. My spirits sank right back down again.

Later in this saga I checked this fax against Telstra’s own CCAS data for that day. Telstra’s records show one call at 12:01, lasting for 6 minutes and another call at 12:18.14, lasting for 8 minutes. There were no incoming calls at all between 12.30 and 2.44 that day. Where had Cathine’s calls been going? I was devastated but I decided not to let the bastards get me down. Their continuing lies and assertions that they had found no faults on my service line must be exposed.

So, I stepped up the marketing of the camp and the singles-club week-ends, calling on numerous recognised social clubs around the Melbourne metropolitan area and talking personally to the people in charge. Over the next few weeks I spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City. I also visited other singles organisations in Ballarat and Warrnambool, large country centres in Victoria.

Further newspaper advertising followed with ads placed with the Leader Newspaper group in Melbourne. This local newspaper group covers 23 different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, the Warrnambool Standard, the Ballarat Courier News, the Horsham Wimmera Times, the Colac Local News, the Mt Gambier-Border Watch etc.

Complaints about the phones continued. People had so much trouble getting through to the camp and although some obviously persevered, God knows how many simply gave up trying.

The two letters in appendix 6 show the less-than-enthusiastic response from Telstra when the Deputy TIO attempted to extract from them an explanation of entries missing from the White Pages telephone directory in 1993. These entries were specifically for my Country Get-a-way Singles Club holidays and I went ahead with an extensive advertising campaign, unaware that the entries were not in the telephone books. I now wonder if there is more to these missing entries than meets the eye because, if there was a simple, above-board reason for my advertisements being left out of 18 major phone directories then why has Telstra never offered an explanation? As the Deputy TIO says in his letter of 29/3/96, he believed his office would simply “be flogging a dead horse trying to extract more” from Telstra on this matter.

One Saturday evening a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the camp as I pictured it but I was trapped, like a rabbit in car headlights, with no way to turn. It was a vicious merry-go-round. Without customers I would go broke quickly and the customers couldn’t reach me because the phones didn’t work. Right then Graham Schorer, the COT spokesperson, rang. He kept urging me to hang in there, convinced that we would win out in the end. Later, even Ann Garms, who is usually so strong and determined, broke down over the phone, crying that it was impossible to go on. This time it was my turn to be strong; “Hang in there, Ann.” I told her, “We’ll beat the bastards yet, you’ll see.”

The process became even more of a roller-coaster ride. My spirits rose once I had hosted a few successful Country-Get-Aways in the following few months but it was only a few, not nearly as many as I knew should have been responding to my advertising and marketing and, inevitably, my spirits sank again as bookings dwindled.

Finally, in desperation, I remembered a clinical psychologist the COT members had contacted back in 1992, when we were first formalising the group — Dr Don Burnard. At the time Dr Burnard had written a report regarding his opinion of our individual conditions, noting the breakdown in our psychological defences and referring to the excessive and prolonged pressures we were being forced to endure. In this report Dr Burnard went on to say:

“All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.”

Now it was May 1993 and nothing had changed. I rang Dr Burnard’s office, looking for support. My conversation with his office was interrupted three times by phone faults. Later I received a letter from Dr Burnard’s office, saying:

“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.”

Between May and October of 1993 I received many letters from schools, clubs and singles clubs, each writing of the difficulties they had experienced trying to contact the camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their ‘Resource Guide’, in which I had advertised, had been direct mailed to schools and given away. Most of the other advertisers with ads similar to mine, he went on to say, had experienced an increase in inquiries and bookings after the distribution of these books and so it was clear to him that the ‘malfunction of your phone system effectively deprived you of similar gains in business.’ He also noted that he had himself received complaints from people who had been unable to phone my camp. They were asking him why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

“Problems with contacting you by phone. Several times I have dialled 055 267 267 number and received no response  — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992.”

In August of 1993 Rita Espinoza from the Chilean Social Club wrote:

“I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on the 10th of August around 7 - 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have made arrangements with another camp.”

As more and more letters like this arrived in my office I became convinced that Telstra senior executives were hiding the true facts of the problems at the Cape Bridgewater exchange. Surely they must have been aware by now that I was not inventing the problems I was complaining about?

Austel’s General Manager of Consumer Affairs, John MacMahon, was becoming more concerned at the evidence COT members were producing; evidence of continuing complaints like these, as well as evidence of incorrect charging. These two problems — people not being able to get through and calls being charged incorrectly, come together in a note from a Mrs Haddok from Croydon. Mrs Haddok wrote regarding her problems getting through on 22 May 1993 and how she continually reached a recorded voice announcement saying that my phone had been disconnected. She commented that she thought this message was ‘quite strange’. My Telstra 008 account for that day (see below) showed a number of very short calls. Apparently I was being charged for RVA messages!

I also mentioned to John MacMahon my suspicions that:

the COT members’ phone calls were being intercepted by Telstra and

some of the short-duration calls I had been billed for, but which I had not answered, were actually incoming calls that were being diverted to an unknown location.

Mr MacMahon did not agree with these suspicions and yet, in an in-confidence, internal Telstra memo dated 25/11/93, on the subject of short duration calls on my phone lines, Telstra stated:

“Mr Smith is obviously well aware that customer premises equipment (CPE) is a significant source/cause of charging and billing disputes, particularly those involving short calls which the customer believes were unsuccessful and should not be charged. Telephone answering machines, facsimiles and call diverters typically are at the centre of these disputes.”

Information on page 72 in the next chapter (13) shows that neither my answering machine or my fax machine could have answered many of these short duration calls. This leaves call diverters as the only ‘culprit’ possible and, since I had not authorised any call diversion on any of my lines, this raises the question: Who then had authorised the diversion of at least some of my incoming calls?

CHAPTER 13

Later in 1993 a Mrs Cullen from Daylesford Community House contacted me to let me know that she had tried unsuccessfully to phone me on 17 August 1993; first at 5.17 pm and again at 5.18, 5.19 and 5.20. Each time she phoned she reached a dead line. After the fourth unsuccessful attempt Mrs Cullen had reported the fault to Telstra’s Fault Centre in Bendigo on 1100. She spoke to an operator who identified herself as Tina. Tina then rang my 008 number and she couldn’t get through either.

Telstra’s hand-written memo, dated 17/8/93, reports Tina’s attempt to contact me and refers to Mrs Cullen’s complaint to 1100, recording the times that Mrs Cullen had tried to get through to my phone.
Document R11519 is a copy of my itemised 008 account, including 17/8/93. It is quite clear that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel.

After Mrs Cullen had reported her experience to the fault centre, Telstra began to take a pro-active approach and arranged for tests on my line to be carried out from a number of different locations around Victoria and New South Wales. Telstra then notified Austel that some 100 test calls would take place on 18/8/98 to my 008 free-call service.

That morning I answered two calls from Telstra commercial, one lasting six minutes and another lasting eleven minutes — these two occurred first thing in the morning as they set up ready for the following test calls throughout the day. Over the rest of that day however, I only remember answering about eight or nine calls in all. Certainly I was stressed by then, possibly I wasn’t thinking entirely clearly, but even so I am sure I would remember if I had answered 100 calls, or even twenty or thirty for that matter. Certainly I didn’t answer 100 calls.

Some days later my 008 phone account arrived and, lo and behold, something like 60 short duration calls have been charged to my service! I queried this with Telstra commercial, asking how I could be charged for so many calls which did not connect and which I certainly did not answer. Telstra wrote to John MacMahon of Austel on 8 November 1993, noting that I had queried the accuracy of the data regarding 67 calls made in a 54 minute period. They went on to say that I had acknowledged answering a ‘large number of calls’ but that I also did not believe I had answered all the calls I was charged for. Finally they reported that all the evidence indicates that ‘someone at the premises answered the calls’. Although Austel has asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, so far Telstra have refused to supply the name.

The phone faults had started a snowball rolling down the mountain. The lack of customers of course meant a lack of income, my financial situation became worse and worse and, with my marriage over as well, my health suffered more and more. Friends began to notice the change in my personality and those few clients who did manage to make contact and book in were also commenting on my apparent ill-health.

Mrs Cullen’s group from the Daylesford Neighbourhood House finally arrived for their holiday in January 1994. Later, two letters arrived from members of this group, complaining that my customer, coin-operated gold phone service was most unsatisfactory. They wrote that the phone was taking money ‘under false pretences’ and not connecting long enough for the caller to properly complete their calls. Both wrote that the line kept ‘going dead’ and they both supplied their names and addresses.

Late in 1994 I was supplied with some documents in response to one of my FOI requests. This batch included two documents which are of particular interest in relation to the Telstra test calls of 18/8/93. These documents, numbered K03433 and K03434, showed 44 test calls, numbered from 8 to 63, to the Cape Bridgewater exchange, with some numbers missing. It is interesting to note, since I believe I only answered eight or nine of the test calls, that nine of the calls recorded on these two documents had tick or arrow marks beside them.

Since receiving these two papers I have continually asked Telstra what the marked calls represent but I have not received any response to my questions.

Document K03434 includes a note stating:

“Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CWBEX (Cape Bridgewater Exchange). I gave up tests.”

It seems obvious that this remark refers to the test calls that were to have been made to my phone on that day.

Another FOI document received in this batch, numbered A03254, was a copy of a Telstra e-mail dated September 28, 1993. This e-mail referred, in part to a recognition of the “... duress that the COT members are suffering” and goes on to say:

“... perhaps I am getting too legalistic and defensive but we can’t afford to let anything get away. However, our best option is still to force these cases down a legal structured path.”

Also interesting is FOI document C04094. This also indicates that Telstra’s management team was trying to force the COT members into a court situation even though they were fully aware that their highly paid lawyers would eat us alive. The aim seemed to be to ‘hang us out to dry’ as an example to other’s who might complain about Telstra services in the future.

On 21 April 1993, a document headed “COT cases latest” was forwarded to someone called Don. This document confirms the COT members’ growing belief that Telstra were planning to use our claims and possible court case to stop any further claims against Telstra, ever. The author of this document stated:

“Don, thank you for your swift and eloquent reply. I disagree with raising the issue of the courts. That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious.....”

Clearly, Telstra management intended to decide when claimants were becoming ‘vexatious’ and that this would be the time they would threaten the claimants with legal action. And this decision comes from a corporation which is continually held up to be a benevolent organisation, acting for the good of the Australian public while, behind closed doors, Telstra management intended to turn legitimate claimants into ‘lawyer fodder’ if they persisted with their claims.

This last Telstra document dated April 1993 had a particularly devastating effect on me. Some time during September or October of 1993 I had advised Austel’s General Manager for Consumer Affairs, John MacMahon, that Telstra’s General Manager (Commercial) had instructed me to direct all my future phone complaints through their outside solicitors. These complaints were all to be made in writing, addressed to a Ms Denise McBurnie, Level 43, 101 Collins St, Melbourne (see Telecom Memo dated 15/11/93 - next page).

Much, much later I was told that this strategy was intended to wear me out or force me to hire my own legal practitioner to deal with Telstra’s solicitors. Sometimes I waited up to two weeks for a response from Ms McBurnie and the time and effort involved in documenting all the on-going faults, while still trying to run a failing business, certainly worked in Telstra’s favour. Somehow I struggled to keep focussed on what the COT group were pushing for: a Senate inquiry into Telstra’s unethical treatment of our small group of legitimate claimants.

A letter of support from a worker at D Madden & Co of Warrnambool (Lawyers), dated 10/11/93, helped me feel less alone and confirmed my decision to fight on. Telstra had to respond regarding their treatment of customers complaints: they must be stopped from continuing their bullying tactics. This letter from Madden’s says, in part:

“I am writing in reference to the proposed Senate Committee Investigation into Telstra.

As you are aware, I am employed as a telephonist with a large legal firm in Warrnambool. In the course of my employment, and particularly during the months of July and August this year, numerous service faults have been brought to my attention. These problems include:

1.         Calls being disconnected during conversation.

2.         Recorded messages informing Melbourne clients and callers that the number has been disconnected when the correct number was dialled.

3.         An engaged signal received by callers despite a number of lines being available.

4.         Complaints from callers that the line has rung out when no ringing tone has been received at the number dialled.

Our firm duly contacted Telstra on a number of occasions in an effort to have these fault rectified. However, Telstra technicians were constantly unable to identify the numerous problems and subsequently remedy our complaints.”

The letter goes on to confirm support for the call for a Senate Inquiry into problems within Telstra’s network and to advise that my name and address had been passed to Madden’s by Mr David Hawker, the local Member of Parliament, with regard to a public meeting we were then organising.

Like previous documents relating to phone problems in the area, I passed this on to Telstra’s solicitors, together with more information showing incorrect charging on phone accounts. I then wrote to Ms McBurnie, dated 12/11/93:

“On trying to fax you the information you received this morning I had quite some difficulty in getting all the pages through at a given time. Note the page errors which I have enclosed.”

By this stage Austel was becoming more than a little concerned at Telstra’s approach to our complaints, particularly their continual use of outside solicitors. In fact, during October 1993, while Austel was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, Robin Davey, Austel’s chairman, made it clear to Ian Campbell of Telstra’s Commercial division that Austel would not be happy if Telstra’s solicitors were to be used in future COT matters. Mr Davey’s request fell on deaf ears however and, through to 28 January 1994, Telstra continued to insist that I register my complaints through Ms McBurnie.

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to Austel and to me, regarding incidents that occurred between January and August of 1993.

On 28 January 1994, during my arbitration, I received a letter from Telstra’s solicitors in response to a letter I had written, challenging their client, Telstra, for incorrectly charging me for non-connected short duration calls. Telstra’s solicitors wrote, in response to one part of my letter:

customers will be charged only for calls which are answered

unanswered calls are not charged.

In the next paragraph they refer to the malicious call trace equipment which Telstra placed on my service, without my knowledge, and which caused a lock-up on my line after each successful call was answered. This lock-up occurred after I had hung up the phone and meant that no further call could come in to my phone for the following ninety seconds.

On pages 66 and 67, at the beginning of this chapter, I relate an incident with the Daylesford Community House where Mrs Cullen described how the line was continually dead when she rang my 008 number four times on 17/8/93. Even so, I was charged for these four calls, all in the space of a single 28 second period. Since the malicious call tracing equipment was not removed from my phone line until 19/8/93, how could Mrs Cullen have been connected four times in such a short period of time? It is clear from other FOI documents, and has been supported by Telstra technical consultants, that no call could have connected under these circumstances at any time between 26 May and 19 August 1993, while the call tracing equipment was still connected. So, where were these calls diverted to?

Another incident, described on page 68, raises more, similar questions. How could sixty-seven test calls all be answered in a fifty-four minute period when my 008 account shows that some of these test calls connected within a single thirty second period? In fact, some calls came through at the rate of as many as three in a single sixty second period. Again, where were these calls diverted to?

And, finally, who would benefit from accessing my incoming calls?

CHAPTER 14

The following letter from David Hawker MP, Liberal Coalition, congratulates me for my “persistence to bring about improvements to Telecom’s country services”. Mr Hawker goes on to say that he regretted “that it was at such a high personal cost.”

In the third paragraph of another letter, this time from the Hon. David Beddall MP, then the Minister for Communications in the Labor Government, Mr Beddall states:

“Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.”

Negotiations continued as we lobbied for a commercial assessment (refer Glossary) for the members of COT, an assessment that we hoped would look at the financial losses we had all suffered because of the faulty phone systems that we had to put up with. At the same time it seemed that there was a strong possibility that a Senate Inquiry would be set up. Our hopes began to rise again.

Two Senators in particular were pushing hard for a Senate Inquiry at this time, the then Shadow Minister for Communications, Senator Richard Alston (who, at the time of writing, is the Minister for Communications) and Senator Ron Boswell. Senate Hansard (refer Glossary) records show that these Senators were assured by Telstra that the four main COT members would have their claims assessed commercially, in a specially designed, non-legalistic settlement proposal, to be called the Fast Track Settlement Proposal (FTSP - refer Glossary).

The decision for this FTSP was reached because all four main members of COT, Maureen Gillen, Ann Garms, Graham Schorer and I had suffered considerable consequential and resultant losses because of our ongoing attempts to bring the matters to the attention of the Government for many years and because of our ongoing attempts and constant work aimed at finding natural justice through Telstra, on top of the losses caused directly by faulty phones.

With the sanction of the then Labor Government, Austel arranged for an international expert to be brought to Australia to have a look at our claims. Bell Canada International Inc (BCI), technical telecommunications specialists from Ottawa, Canada, arrived to run tests on a number of the phones connected to the businesses belonging to various COT members.

These tests were allegedly carried out on my phone service between 4th and 9th November 1993, a period when my phone faults were particularly troublesome, as Austel were well aware.

At the conclusion of these tests BCI produced a report. Unfortunately this report was not acceptable to Austel since the BCI technicians had not tested the actual line between my business and the nearest connection to the local exchange (called the Customer Access Network or CAN). FOI document numbered A00404 to A00407 shows that Telstra’s Ian Campbell, Commercial General Manager for Australia, responded by letter to Robin Davey, Chairman of Austel, on 15 December 1993, saying:

“The conclusion to be reasonably made from these events is that Austel publicly judges the BCI report “Fails to live up to the expectations raised by the terms of reference.”

Reasonable inferences might be drawn about deficiencies in the competence, professional standing and integrity of BCI, and the competence and integrity of Telstra and myself in the conduct of the study and representation of the findings.”

In this letter, Mr Campbell goes on to discuss the COT Settlement Proposal (FTSP), saying:

“Considering the above circumstances, Telstra cannot agree to attach a copy of Austel’s letter of 9 December to the BCI report if the latter is made available to the assessor’s nominated for the COT cases.”

A hand-written note at the bottom of the last page of this letter states:  “There is a multitude of inaccuracies” . This note is linked by an arrow to a reference to a letter dated 9 December 1993, from Austel’s Cliff Matherson to Telstra’s Ian Campbell. Some time later I received a copy of this 9 December letter, under FOI (numbered K47052 to K47054). Cliff Matherson’s summary, at the end of this letter, stated:

“Having regard to the above, I am of the opinion that the BCI report should not be made available to the Assessor(s) nominated for the COT cases without a copy of this letter being attached to it.”

It is quite clear however, from information I received in response to my FOI request of 18 October 1995, that Telstra did not supply a copy of Cliff Matherson’s letter to my arbitrator. This issue has not been investigated either by the Hon Richard Alston, Minister for Communication or by the TIO, even though they are both fully aware that Telstra used the BCI report to support their defence of my claims and even though the arbitrator acknowledged in his 11 May 1995 award that he had accepted the BCI report into my arbitration.

One week after Ian Campbell wrote this letter to Robin Davey, a Telstra e-mail (FOI document A00354), discusses a new tariff filing that was to be lodged on the 20 December 1993. This new tariff was to include new performance parameters, one of which committed Telstra to a 98% call completion at the individual customer level. This e-mail also referred to experiences with customer disputes and the Bell Canada International Study, commenting that:

“ ... this is a cause for concern - Telstra will not meet this 98% figure in many exchanges around Australia, particularly in country areas

Apparently Telstra were quite aware that their rural subscribers were not being properly looked after. This was born out in discussions I had with David Hawker and Austel. My complaints were obviously quite valid.

FOI document A09392 raises even more concerns regarding problems with rural exchanges. The writer of this document states:

“Parameters for Cape Bridgewater RCM have been obtained but I don’t believe them — I am attempting to check them — some of the people supplying this information live in “old Telecom”.

Clearly the parameters for Cape Bridgewater exchange posed some sort of problem for Telstra: could this have been the reason for Telstra not supplying this information in response to my FOI requests?

It is difficult to describe the anguish suffered by the four COT complainants as we continued to do battle with Telstra. This was a corporation entirely government owned at the time, an organisation that Australians were being exhorted to trust with radio and television advertisements bombarding us night and day. How could we have been treated so badly?

At about this same time Telstra commissioned the international audit company of Coopers and Lybrand to report on Telstra’s fault handling procedures, particularly when they were called on to deal with complaints like the issues raised by the COT members. Coopers & Lybrand’s report indicates that they were shocked, to say the least, at the evidence supplied by the COT cases. Telstra’s unethical management of our complaints over the years caused some serious concern to Coopers. What followed Telstra’s first reading of the Coopers report was indicative of Telstra management’s attitude to their subscribers.

On 9/11/93, Doug Campbell, Group Managing Director of Telstra wrote to Ian Campbell (no relation), also of Telstra. In this letter Doug Campbell said:

“I believe that it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, that their future in relation to Telstra may be irreparably damaged.”

These are strong words from the most senior manager below the CEO of the largest telecommunications corporation in the country; a corporation which, at that time, had a monopoly hold on the industry in Australia. This was not an empty threat but it seemed not to have the desired effect because Coopers tabled their report in the Senate and released it into the public domain with, as far as I can tell, no significant changes.

The following points have been taken directly from Coopers report.

“2.20   Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22     Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2)        Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5       We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.”

With Bell Canada International and Coopers & Lybrand busy producing their individual reports on the COT allegations we four at last felt vindicated; we were not paranoid after all. Telstra really did have a case to answer.

As a result of their own investigation, Austel had come to the conclusion that there were problems in the Telstra Network and that the COT four had, for all the right reasons, been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing (and now all close to being totally broke) had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were in such a difficult financial position however, because our phone services were still not up to network standard and because I had certainly proved that my phones were not working properly, Austel’s chairman, Robin Davey, pressured Telstra into appointing a commercial loss assessor to arrive at a value for our claims. This was to be the non-legal Fast Track Settlement Process and it was to be set up so that the COT four would have prompt and speedy access to any discovery documents we might need to enable us to complete our claims as quickly as possible.

Telstra agreed to rectify any on-going phone faults before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? Again our spirits rose and we began to feel that we were getting somewhere at last. We had discussions with Robin Davey and he verbally assured us that any preparational costs we might incur would be considered as part of our losses, so long as we proved our claims.

Mr Davey would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to Mr Davey on 18 November 1993 (FOI document number R10799), pointing out that:

“ .... only the COT four are to be commercially assessed by an assessor.

For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.”

This caused us all some concern and so we turned for advice to Senator Richard Alston, then still the Shadow Minister for Communications.

We contacted Senator Alston on 22 November and this is confirmed by an internal memo from Senator Alston’s secretary, Fiona, headed “Re: Fast Track Proposal”. In this memo Fiona writes to Senator Alston:

“Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.

COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.”

Amazing as it now seems -- we never did get this advice from Senator Alston, even though we had informed his office that various members of COT were now receiving many phone calls from other unhappy Telstra customers around Australia. The faults reported by these callers seemed to indicate that problems within the Telstra network were more wide-spread than Telstra would have the Government know. Some of the callers spoke about their fears of having their phone calls bugged; others were more concerned with over-charging; some talked of suspicions of ‘organised crime’ within the ranks of the Telstra corporation and still others raised issues of the misleading conduct of some of Telstra’s senior managers. All this information was passed to Austel and to Senator Alston.

CHAPTER 15

Graham, Ann, Maureen and I signed the FTSP the following day, 23/11/93, trusting in Robin Davey’s verbal assurances that consequential losses would be included. The agreement was forwarded to Telstra’s corporate secretary. I included a letter with the agreement, clearly putting my expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

The four COT members felt some sense of achievement although Maureen’s health was beginning to fail. The rest of us tried to ring her as often as we could because she was not getting much support from her business partner who often seemed a bit put out when we rang Maureen to ask how she was.

The pressure on all four of us had been immense with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services, at least in Victoria.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of a poor standard of service from Telstra. Other ordinary subscribers were also writing of problems they had had with their phones, including a number of different billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believed then, and I still believe, that this was a responsible reaction to the letters I was receiving. Telstra didn’t even offer a ‘thank you’ however, leaving me with only one option: to continue to canvas the media for publicity about our fight.

Other rural subscribers wrote to various TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people, as well as the general public, were not being supplied with a level playing field when compared to our city cousins. One of these letters is particularly interesting. It came from David M Thomson & Associates Pty Ltd, Insurance Loss Adjusters in Ballarat, a rural city in Victoria, and was sent to the producer of “Real Life”, a TV current affairs program then being broadcast on Channel 7. They wrote:

“Re Problems with Telstra”

I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based. (refer Glossary)

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message “This number is not connected” or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25-30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”

Another letter sent in April 1993 to the Editor of the Herald-Sun Newspaper in Victoria, read in part:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I have also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response - a dead line.

I also rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who also got the same noise when testing.”

Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not seem to help.

The TV stations reported that their phones had run hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and from the general public boosted our morale and gave us a bit more energy to keep going as a group. We continued to push to have all these matters addressed in the Senate.

FOI documents show that, at about this same time, a number of Labor Party Senators were becoming more and more concerned at what COT members were uncovering. Other FOI documents show that Telstra were not correctly reporting the true facts as they were at the end of 1993. It is also clear from still more FOI documents that it is highly likely that some newspaper journalists were approached by Telstra and asked to ‘kill’ a story about our problems with phone faults.

FOI document number C04054, entitled “Cot Wrap-Up”, states, in part:

“I think it should be acknowledged these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy “Look at superbly built and maintained network” stories.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter.”

We are left to wonder just who ‘Clinton’ was and why his mind was considered to be ‘in the gutter’!

A TV news program was clearly also a target in this attempt to muzzle the media. FOI document A04646 reports:

“Good news re Channel (Australian TV station ID omitted) News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phrase it was that convinced (reporter’s name omitted) not to proceed. Might have been one of ‘Jim Holmes’ pearls.”

The ‘Jim Holmes’ referred to in this e-mail was then Telstra’s Corporate Secretary; the reporter worked for the TV station referred to at the beginning of the e-mail. The identity of the TV station and reporter, clearly shown in the original e-mail, have deliberately been omitted from this book.

Again we can only wonder what it was that could convince a respected journalist to drop a story. Furthermore, if Telstra had met with the members of COT at the very beginning, listened to our complaints and then done something about them, there may never have been a need to interfere with media stories because there never would have been a Casualties of Telstra group in the first place. After all, we were only asking that Telstra rectify our phones so we could each get on with the running of our businesses in the same way that other small businesses operated.

The following document is another example of censored FOI material. This Telstra memo has some names blacked out but other documents show that Telstra’s area general manager is clearly referred to as one of the Telstra people appointed to ‘deal with the media/politicians’ regarding COT issues. Previously, on page 58, I have recounted one of the stories related to this same area general manager. As I explained then, it seems quite clear that this manager had deliberately misinformed me during a settlement process in 1992/93. Now we discover that she was to be one of only two people who were appointed to speak to the media about the COTs. Would she have misinformed the media the way she misinformed me, I wonder? And, just as worrying, why was the author of this memo so worried about ‘tripping up’

CHAPTER 16

On the 17th January 1994, Warrick Smith, then the TIO, distributed a media release. An ‘assessor’, Dr Gordon Hughes, had been commissioned to process the four COT Fast Track Settlement Proposals. What the TIO did not say was that Telstra were not abiding by the original FTSP agreement: they were not supplying us with the discovery documents (refer Glossary) we were requesting under FOI.

By this stage we had lost any chance we might have had for a Senate Inquiry into what the COT members believed was the unethical way Telstra was continuing to treat us. By late January 1994, it appeared that not only was Telstra treating us with sheer contempt but they were doing this in full view of the Senate. The COT members were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a Judicial Inquiry into the way Telstra continued to thumb their noses at the Government.

I remember feeling lost and confused, wondering who I could turn to for help; just wanting to find a way to trust someone, just one more time. Austel’s chairman, Robin Davey, was expressing anger about the delays we were suffering as we tried to gather the necessary discovery documents. By February of 1994, Senator Ron Boswell was also asking questions of Telstra in the Senate. Still the members of COT struggled to run their failing businesses and, at the same time, attempted to do battle with the colossus of Telstra and their legal advisors.

Imagine having to write to Telstra’s solicitors, to lodge my phone complaints! Was this Telstra’s way of breaking my morale? Imagine having to report a telephone fault, in writing, to a solicitor!

We learnt from the TIO that the commercial ‘assessor’, Dr Hughes, had drawn up a set of rules within which to work on our cases. Then, to add insult to injury yet again, we learned that Telstra had badgered Dr Hughes into converting the commercial assessment into an ‘arbitration’ procedure (refer Glossary). COT members registered our disagreement with this through the TIO who had been appointed as an independent administrator of the Fast Track Settlement Process. We made it very clear to Warrick Smith that the four of us were already involved in a signed and agreed commercial process and we saw no clear reason for changing that situation. We believed an arbitration process would certainly never be ‘fast-tracked’. It was bound to become legalistic and drawn out and we knew none of us had the finances to go up against Telstra’s high-powered legal team in such a process. We believed the whole idea of an arbitration had been raised simply to suit Telstra’s agenda.

Somewhere around the 6th to the 8th of February that same year, Graham Schorer had a telephone conversation with Warrick Smith. Graham wanted to discuss the reasons the COT four were rejecting the arbitration process. Our reasons were immediately dismissed. Warrick Smith used words to the effect that his prime role was as Telecommunications Ombudsman and that he had been spending much too much time focussing on his secondary role as administrator of our FTSP. He was concerned that his office had already incurred considerable expense because of this administrator role and he made it clear to Graham that Telstra had refused to reimburse those expenses. He also indicated that his office had no intention of continuing to incur expenses on our behalf. Further, he told Graham that if the COT four did not abandon their commercial agreement with Telstra then Telstra would pull out all stops with the aim of forcing us into a position where we would have to take Telstra to court to resolve our commercial losses. Telstra, the new arbitrator and the TIO were all aware that none of us had the financial resources to enter into a court case.

As if all this wasn’t shattering enough, the TIO went on to say that, if we did decide to take legal action in an attempt to compel Telstra to honour their original commercial assessment agreement then he (the TIO) would resign as administrator to the procedure. This action would have forced the conclusion to the FTSP and left us with no other alternative but to each take conventional legal action to resolve our claims.

Simply put, it seemed that the TIO had sold us out. The new assessor also seemed to be selling us out before he even got properly started. We asked to see Telstra’s preferred rules of arbitration, which had already been supplied to the TIO’s office but the TIO refused our request. We had been reassured that these rules had been drawn up independently of Telstra, by Dr Hughes and Minter Ellison, the legal counsel to the TIO’s office. We were also told that a Mr Sheldon, one of the partners in Minter Ellison, had consulted with Dr Hughes over these rules.

Whenever we asked to see a copy of these rules we were told that we should trust Dr Hughes. And so we did. In retrospect we were fools to accept such a compromise but, after struggling through the nightmare of the years leading up to this point, we were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the trickery of Telstra’s corporate power.

Even so we continued to implore the TIO to reconsider and let us continue with the original FTSP agreement. On 16 April 1994 we faxed him once again, stressing our request. Again this fell on deaf ears. By the following Thursday, 21 April 1994, we had given up and abandoned the FTSP without seeing Telstra’s preferred rules of arbitration. Later we discovered that the copy of these rules which had been supplied to the TIO’s office was actually headed “Telstra’s preferred rules of arbitration.” We simply wanted to make sure that the rules we were signing for were different to Telstra’s ‘preferred rules’: why should Telstra be allowed to dictate to us? Our concerns were of no interest to the TIO however and so, like lambs to the slaughter, we signed on the dotted line on 21 April 1994.

When I arrived back at Cape Bridgewater after signing for the new arbitration procedure I found that, while I had been away, my staff had logged two more faults on my fax line, at 2 pm and again at 2.15 pm. Nothing, it seemed, had changed.

Not only was I still suffering from all these phone faults but, along with the other members of COT, I still couldn’t access the FOI documents I needed to support my claims against Telstra because Telstra would not abide by the FOI Act. Questions about this lack of supply of FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators. The persistence of these Senators paid off for some members of COT but, unfortunately, I was not so lucky. The persistence of the Senators somehow failed to force Telstra to supply the documents I needed.

CHAPTER 17

On 26 April my son attempted to phone me from his mother’s (where he was living at the time) about his Austudy payments. According to my diary records he first tried at 12.56 but only reached an engaged signal. Document K37932 is Telstra’s fault report for that day.

This makes it quite clear that Telstra acknowledged that there were other call attempts on that day, all from 03 568 xxxx, which is my ex-wife’s phone, to my phone number, 055 267 267, which translated to my 1800 freecall number.

FOI document A19115 is a copy of my wife’s telephone account.

FOI document A19113 is a copy of my 1800 phone account.

When these two documents are compared it is easy to see that, again, Telstra charged me for calls which I did not receive and, furthermore, they charged my ex-wife for two of the calls which did not get through because my phone was registering as engaged. This is confirmed when these two documents are compared to Telstra’s own CCAS data. These documents are taken from many, many documents which I have accumulated over the years and which all prove conclusively that Telstra people were aware of the many problems my phone line suffered, over a number of years.   For instance, in August 1993 I complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct out-going line, 055 267 230. This was also a fax line. People often had remarked that, after I had hung up they could still hear me moving around the office. Because of all the other problems I was dealing with at the time I didn’t pay much attention to this small fault until 26 April 1994, the same day that my son had tried to reach me by phone.

This day I phoned Cliff Matherson, one of Austel’s senior engineers, to talk about this ‘hang up’ fault. Mr Matherson suggested that he and I carry out a series of tests on my 267 230 line. His plan was that I would hang up and count out loud, say from one to ten, while he listened at his end. This first test proved that he could hear me right through to the number ten and so he suggested we try it again, but count even further this time. Still the same situation: he could hear me right through the range as I counted. Mr Matherson then suggested that I take the phone off that line and switch it with the phone which was connected to my 267 267 line (they were both exactly the same Telstra phones, model T200). I did this and then we repeated the ‘counting’ test, with exactly the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. Mr Matherson’s next suggestion was that I ring Telstra, which I duly did.

This time I spoke to Peter Gamble. I explained carefully what was happening, adding that I had experimented and found that I could count for quite a long time, up to 15 or more, and the person at the other end could still hear quite clearly. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what they would come up with this time.

So, again, I performed the same tests for Mr Gamble who advised that he would send a technician to collect the phone the very next day. Documents K00940 and K00941 (on the next two pages) show that Mr Gamble was fully aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault.

The documents on the next two pages should be read in sequence, before continuing, as both prove that Telstra were aware that phone faults in the exchange were still apparent, even while I was preparing my claim for arbitration. It should also be noted that I asked both the arbitrator and the TIO how I could access discovery documents to support the CONTINUING phone faults, when Telstra was still actually testing for these faults, even on that very day.

Communication experts have since acknowledged that these phone faults continued even after Telstra had submitted their defence of my claim. And what about the phone faults which continued after Telstra had defended their network? They have still not been addressed by the TIO, the arbitrator or Telstra.

When my Telstra account is compared with Telstra’s own data for this period it can be seen that these 15-second call hang-ups and incorrect charging were occurring from at least August 1993 right up until this phone was taken away on 27th April 1994. The phone itself was from the ‘Exicom’ series, manufactured in April 1993; the same as the phones referred to in FOI document D01026. This phone later proved to be a major player in one of the many sub-plots of this Telstra saga; it was used as part of Telstra’s defence of my claims and it was used mainly in an effort to damage my credibility. But that story comes much later.

Meanwhile, on 27th April, when Telstra phoned, at around 9 am, to arrange pick-up of the faulty phone, I had just arrived back in my office after spending the previous 12 hours on our local CFA (Country Fire Authority) fire truck fighting a large bush fire (as our local CFA records will show). I explained to the Telstra caller that I had been out from 7pm the night before and had only just arrived back, and I asked if the pick-up could be arranged for some time after 1pm so I could get some sleep. Later, in an FOI document, I found that the most important part of this conversation had been omitted from Telstra’s records: they simply stated that ‘Mr Smith was tired, and wanted to go to bed’ and went on to say that I had asked that they not disturb me until after lunch. The omission of any reference to why I was tired is just another example of how some Telstra personnel twist words to suit their own perspective.

By now I was trying to assess my situation and collate my own claim to submit to arbitration, using much of Austel’s ‘COT report’ which had just been released (in April of 1994). Even this report had needed to be revised by Robin Davey because Telstra threatened to enforce an injunction thereby tying the report up for years in a legalistic manoeuvre. Mr Davey had agreed to the amendments required by Telstra just so that the COT four could at least have access to some of the information in the report.

Austel had found a number of my claims to be proven however they were basing their conclusions on information supplied only by Telstra and it later turned out that Telstra had not given Austel the true facts regarding the age of the first exchange at Cape Bridgewater. I had hired as technical advisor, George Close, a telecommunications expert who was based in Queensland and he based his findings on Austel’s report. This meant, of course, that he also based his findings on incorrect information. According to Austel’s report, the first exchange in Cape Bridgewater was called an ARK exchange. What transpired later was that it was, in fact, an RAX exchange. The RAX was designed in the late 1940s or early 1950s, specifically for low-call-rate areas. The ARK was newer technology and was designed some 20 years later.

The first part of my claim covered the first three and a half years after I took over the camp at Cape Bridgewater (the whole claim covered a period of six and a half years in all). I later discovered that this ancient exchange had been in operation for years but George Close and I both believed, as did Austel, according to their report, that the newer ARK was in place through those years. So George assessed my situation, unknowingly working from a false base. This incorrect information downplayed the true fault loss suffered by my business. Was this incorrect information, given to Austel by Telstra, just another deceptive move aimed at hiding the true extent of my continuing phone faults?

This was beginning to look like a repeat of the Tobacco companies and their deceptive conduct over the last 20 years, hiding their true knowledge about the addictive effects of nicotine and then hiding their knowledge about the smoker’s health risks as well. Telstra was (and still is) no different really. They were fully aware that a number of their exchanges around Australia were outdated and were therefore causing enormous difficulties for their subscribers, small-business people and the general public alike. Still they hid these facts. Still it appeared that they did nothing to improve the system. For ten years Telstra have continued to charge me for calls which never connected, for RVA calls and for short duration (and therefore useless) calls. Why hasn’t the TIO’s office investigated my irrefutable evidence? After all, this evidence is supported by Telstra’s own data.

Some nine months earlier, in August of 1993, having been to Melbourne for a COT meeting, I arrived back home to be confronted by a Sheriff from the Justice Department. He had a warrant requiring payment or seizure of goods in lieu of payment. I asked if he would wait fifteen minutes while I tried to talk to the people I owed money to but he would not.   A fight ensued and I threw him out of my office. Later I was charged, in the Magistrate’s Court, with assault: I appealed the court action, defended the charge successfully and saved the day (there was no conviction). The newspaper article, numbered as FOI document K01407, tells the story.

It would appear that Telstra’s FOI Unit was also interested in this situation since this copy of the newspaper article came from Telstra’s records. What this had to do with my phone problems is anyone’s guess although I have since learned that Telstra were accumulating a lot of personal information about me in a file containing details of who rang me, when they rang and from where as well as when my staff left my business. Apparently they were not only interested in my complaints about phone faults.

And so I battled on. A law student to assist would have been a God send. The mountain of documents continued to grow and threatened to engulf me entirely while Telstra’s multiplying legal team stood by, waiting to pounce on the slightest crack they could manufacture in the claim documents I submitted. The knowledge that every document I sent would be poured over by highly qualified legal experts didn’t exactly help to keep my confidence up. Finally I sought out the TIO and his legal counsel, explaining my lack of confidence and re-iterating Robin Davey’s reason for first asking for a non-legalistic hearing for us. Mr Davey had always believed this would be the best and fairest way for us to present our cases.

The TIO could only console me by telling me to ‘do the best you can’. The TIO’s legal counsel re-assured me that the new process was fair and advised me to ‘give it a go’. And so I had no choice but to seek help from professionals in the field. I began by approaching a local firm of loss assessors in nearby Mt Gambier, just over the border in South Australia, about 110 kms away. This firm was headed by Mr Phil McDonough, an agent for NZ Insurance. When I first phoned I spoke to Mr McDonough and explained who I was, gave my location and what I hoped to have help with. There was quite a long pause before Mr McDonough asked me if I had suffered some storm damage at the camp about four or five years earlier. I remembered that I had. It turned out that Mr McDonough had acted as loss assessor back then and remembered that he had had a lot of trouble contacting me by phone and had finally resorted to writing to me to let me know they were coming to assess the storm damage.

After discussing my current position in more detail Mr McDonough decided that my problems were outside their area of expertise. Imagine, Telstra and the TIO expected me to prepare my claim alone and a professional loss assessor believed the case was too complicated for him to take on. Here I was, a marine cook, a chef, and the TIO and his legal counsel could only tell me to ‘do the best you can’!

I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

It was at this stage that I approached George Close in Queensland. George was already working on Ann Garms’s case and she had suggested I talk to him. It was just a shame that he was so far away from me geographically as this, of course, complicated everything just that bit more. When Telstra discovered that we had secured George’s help, they approached him, offering work. It would seem that they were still trying to close off all avenues for the COTs. George, however, at 70 years of age, was having none of that. He made it quite clear that, if he took up Telstra’s offer, it would create a definite conflict of interest and severely disadvantage the COT members and so, bless his beautiful heart, he declined their offer. It would seem that at least one Australian was prepared to put himself on the line and face up to Telstra’s bottomless financial public purse.

Finally, after more searching, I located a Loss Assessor company, Freemans, also 1,200 kilometres away on the Sunshine Coast in Queensland and then I spoke with an ex-National Crime Authority detective, Garry Ellicott. Garry agreed to help me on the understanding that he would only be paid if and when I won my claim. The only payment he expected along the way would be for re-imbursement of out-of-pocket travel expenses so he could come to Cape Bridgewater.

Once all these professionals were in place I then had to work out how to raise the finances to bring Garry Ellicott to the camp. With my business still in tatters I was caught like a butterfly in a web: the consequential losses resulting from the poor phone service meant that my finances were getting worse and worse but I badly needed money to keep up the fight. The only alternative was bankruptcy and I was determined not to lose the camp because of Telstra’s skulduggery.

Government ministers, Coopers & Lybrand and Austel were all agreeing that the COT cases were right and Telstra was wrong. Even Telstra themselves, in a letter to the Minister for Communication, admitted that my assumptions were correct, but we still had our backs against the wall. We were still not getting any financial assistance from anywhere and were left to scratch around to raise the funds to organise our claims, claims that most loss assessors would not even attempt to touch.

I raised $280.00 by selling two of the camp’s canoes and, with nothing saleable left, borrowed another $1,000 from Peter Turner of the Australian Singles Club who took an advance on his credit card because all his money was tied up in New Zealand.

At about this time 900 to 1,000 discovery documents arrived from Telstra, in response to one of my FOI requests. “Wonderful,” I thought, “now we are getting somewhere.” But, of course, I was wrong. Telstra may well have supplied the documents but, according to the FOI act, they were required to supply them in some sort of order, preferably chronological and definitely with some sort of numbering system in place. Not only were all these documents supplied without any numbering system, they were also not even supplied in chronological order of any sort. Further, there was no explanation of what the documents actually represented. Many were unreadable with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. Below is one of many examples of these heavily censored documents from my first FOI release. How could I support my claim with material like this?

If I had known, back on 21st April 1994, when I was forced, under duress, to abandon the commercial assessment process and sign for arbitration, that Garry Ellicott’s fees would mount to over $50,000; that George Close’s fees would come to more than $25,000; that Derek Ryan, my forensic accountant; would amass fees of more than $50,000; that typing would cost me more than $25,000 and that I would also have to bear another $40,000 in miscellaneous fees, I would never have agreed to the arbitration, even if Warrick Smith had held two guns to my head. But I couldn’t know this in advance and I did not have any legal representation on the day so there was no-one who could warn me of what was to come. As a lay person I did not know that, if I later wanted to challenge the decision made by the arbitrator, I would have to take the matter to the Supreme Court, even if I could prove that the arbitrator had acted in concert with another. What chance did I have?

Even the TIO’s suggestion that we would have nowhere to go if we didn’t sign for arbitration, except for massively expensive court cases, would not have made Ann, Graham and me agree to sign even if we had know what was to come. Not only have we had to bear enormous financial burdens, but we have also all had to suffer through failing health. I know blackmail is a strong word to use when talking about an ombudsman but that is certainly how it felt to the members of COT. The TIO’s comments sounded quite clearly like a ‘take it or leave it’ threat because the his office is funded by the telecommunications companies, Telstra included, unlike the office of the other ombudsman, which is funded by the Government.

The following two paragraphs are taken from FOI document R00037 (a fax from Telstra’s Corporate Secretary). Clearly the members of COT were not intended to have to bear the burden of the costs of assessment.

CHAPTER 18

Anyway, I managed to raise enough cash to bring Garry Ellicott to the camp for a couple of days to observe what was going on with the phones. During his stay he noted short duration calls, dead lines and problems trying to send faxes to George Close. In fact it was Garry who commented that he believed I was being watched. His background as bodyguard for the United States President, Jimmy Carter, during his visit to Australia, gave him some experience in this area. He was sure I was being kept undersome sort of surveillance and FOI documents (see document K01006) show that Telstra were aware of my movements, and the movements of my staff.

Document K01006 is dated Thursday 7 April 1994, at 2.05 pm and signed by Bruce Pendlebury of Telstra. This document raises two issues. Firstly this date falls during the time I was involved in the Austel designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least. Secondly, this document refers to a time when I would be away from my business. Mr Pendlebury states (note that NRR in this memo refers to ‘Not Receiving Rings’):

“David, Mr Alan Smith is absent from his premises from 5/8/94 - 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Now, it is clear that Mr Pendlebury knew, in April of 1994, that I planned to be away later that year, in August. In other words he knew of my movements, 4 months in advance. Telstra have never been able to explain how he came by this information. Further, Mr Pendlebury has also stated that he knew that I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone. He also knew when that conversation took place. Mr Pendlebury insists that I told him about this conversation but this is not true. I told him no such thing. Again, Telstra have never been able to find a convincing explanation for Mr Pendlebury having this information. Obviously Telstra were still listening to my private calls, even though I was then involved in litigation with them and their lawyers. The following FOI document, not numbered, clearly shows that the writer knew where this caller usually rang from even though, on this occasion, the caller was phoning from a different number, “somewhere near Adelaide”. How could the writer have this information, if someone hadn’t listened to this call to find out who the caller was?

Senator Richard Alston, Minister for Communications; the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private calls were being ‘bugged’. I have had no response from any of them, and I have now been waiting for four years.

Listening to private calls is appalling enough but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25/2/94 states that Senator Alston, then Shadow Minister for Communications, questioned Mr Robin Davey, Austel’s Chairman. Senator Alston asked:

“Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?”

FOI document K00701, dated 14 January 1994, headed “Voice Monitoring of Priority, Investigation Services” states:

“Described below are the details of any voice monitoring which has been carried out on the 3 Priority Case Investigation services in Country Vic/Tas”.

This document goes on to say that calls to the Cape Bridgewater Holiday Camp had been voice monitored at the Portland exchange where an alarm bell rang when calls came through for the Camp. Further proof that Telstra personnel listened to my calls over a long period.

FOI document A10148, a copy of a letter dated 10/2/94 from Austel’s General Manager of Customer Affairs to Telstra’s Group General Manager in charge of the COT arbitrations, confirms the visit by the Federal Police. In this letter Austel notes:

“Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases

Another interesting letter which I received under FOI was dated 28 January 1994 (within the COT litigation period) and was from none other than the Chairman of the Board of Telstra, Mr David Hoare. Mr Hoare wrote to the Hon. Michael Lee, then the Minister for Communications, acknowledging that the Board were aware that Telstra technicians had listened to customers’ conversations. Mr Hoare wrote:

“Thank you for your letter of 20 January 1994 requesting a report on allegations regarding voice monitoring.

I have attached for your consideration a full report on Telstra’s inquiries into this matter and the actions proposed to prevent its recurrence.”

Other documents received by various members of COT also confirm this ‘voice monitoring’. These documents include one titled “Corporate & Govt. Major Customer Group 19/8/92”. This document is included on the first page of Chapter 9. It includes information showing that the document relates to the Tivoli Theatre Restaurant (which was owned and run by Ann Garms in Brisbane) and, in relation to ‘voice monitoring’, it is interesting to again note the information at point 19:

“Line 2 NDT NRR SUSPECT SABOTAGE ?????”

On the last few lines of this same document are the comments (at points 1, 2 and 3):

“10/03/92 ....... Tests looped .... SK ... maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly????????”

I found myself wondering; was this an internal memo from Australia’s largest telecommunications company I was reading, or was it a page torn from a spy novel?

FOI document B00474 is a copy of a Telstra minute which also refers to Ann Garms and the Tivoli Restaurant. In relation to the Federal Police’s investigation it is interesting to note the following points and questions raised in this document:

“John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services......... Why was Federal police stopped from investigating the Tivoli Case ........... Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years.

Why was AA of Protective Services investigated ?   and investigation stopped short of his bank account.

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart ............”

CHAPTER 19

PRESENTATION OF MY CLAIM

Telstra have acknowledged that during May of 1994, I continued to report what is commonly referred to in communication circles as R00 faults, ie. the phone only rings once or twice, then nothing. Telstra officials tried to play down these faults as me not understanding the operation of my new fax machine (in other words, they continued to blame the customer’s equipment, referred to as CPE or customer premises equipment), even after Coopers & Lybrand’s report of November 1993 had advised that this practice was not acceptable.

Austel also found that the R00 faults were continuing. In their COT report, under the heading “Telstra’s fault reporting/recording & monitoring/testing system & procedures”  they said:

“Network investigations had been working on the problem for an extended period of time with little success. This involvement has been escalated in the past three months — this fault was in connection to cut-offs which had also happened in the past.”

At point 6.87 in this same Austel report is the comment:

“It may be concluded from the above extracts from internal Telstra documents that Telstra knew for quite some time of general problems in its network which were affecting customers and was unable to identify the cause of those problems.

Again, at point 7.39 (page 167), Austel reported:

“AXE network fault — this is Portland’s main telephone exchange (AXE).

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) Switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party — for example:

ie. “I spoke to Alan Smith ..... he received one burst of ring at 1.15 pm and 5.05 pm yesterday. When he picked up the receiver he heard dial tone. This problem occurs intermittently through-out the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.”

And again, on page 168, Chapter 7, titled “Customer Complaint Form 25 March 1993”:

“Visited Mr Smith 6/04 to do end to end test calls. The first call in prior to me starting testing gave two bursts of ring and when the phone was lifted there was only dial tone. The receptionist said it was the 2nd call that morning with the same result. She also stated several people had commented they receive busy tone when they rang the previous evening when she knew the phone was free.”

These statements are even more alarming when you realise that they were collected from Telstra’s own archives and records, by Austel officials, paid by the Australian Government, and yet still some Telstra officials were prepared to later sign Statutory Declarations covering information they knew to be untrue. This corporate culture at the management level of Telstra was what put the members of COT in the positions they found themselves in: fighting an unfair arbitration simply because we challenged the misleading and deceptive conduct of Telstra managers. Simply because we were seeking the truth. Simply because we were prepared to stand up for our rights as Australian citizens; our rights to a telephone system which was comparable to that of our competitors.

During May 1994 Garry Ellicott and I spent five nights toiling over the pile of Telstra discovery documents in an attempt to decipher what they all meant. By this time Garry was also experiencing phone problems similar to those problems I had been suffering from for all these years. I found some comfort in having someone of Garry’s standing staying with me, even if it was for only a short time. His background in the police force and the NCA was quietly reassuring. When he left to return to his office in Queensland he took some of the FOI documents with him for further examination.

While Garry was visiting, I discovered I could not locate a number of important camp documents. Missing were exercise books in which I kept official booking records, books which I needed to support those few bookings that were still managing to get through; a number of bank statements and my bank pay-in books for 1992/93. Also missing were two diaries which were keepsakes because they were in my ex-wife’s handwriting (from the two years she spent at Cape Bridgewater before our marriage broke up). These diaries covered the period of 1988 to 1989 and they have never been seen since. I was left with my rough diaries, and wall planners which I used to register bookings as they came in and before they were registered in the official exercise books. This information is covered in more detail in the description of an oral arbitration hearing which occurred later, on 11th October 1994.

Because all these records went missing, I was hard pressed to produce full and correct financial statements for my financial advisor, Derek Ryan. In fact, I had to resort almost to guesswork, based on information from my wall planner and diary which was compared to those bank statements I still had. Where these missing records really went is anybody’s guess.

Graham Schorer found himself in a similar position. A concrete pillar at the side of his office was smashed so thieves could gain access to his business. Interestingly, the only things stolen were documents.

My stress levels rose enormously over this period. Trying to produce a claim in some readable form when the story was so very complex, and without much actual technical knowledge was extremely difficult. My phone and fax lines became life-lines to Garry Ellicott, my technical advisor in Queensland. By this time I was not only relying on the phone lines, I was also, unfortunately, relying more and more on the Scotch bottle, consuming up to 3 or 4 scotches a night in a vain attempt to calm my nerves. My private life was a mess with my partner in Ballarat and I turned, for a time, to another fine lady for comfort. It is interesting to note that soon after she befriended me she also began to experience problems with her business phones and her customers started complaining that her phone was continually engaged. FOI documents indicate that Telstra investigated this.

Often I was aware of a particular car sitting on the road above my house. Were they admiring the picturesque view of Cape Bridgewater Bay, I wondered, or were they watching me? Even though I was aware that my mind may well have been playing tricks on me, this was certainly a worry.

Finally, in the early hours of one morning, in July or August of 1992, I confronted an intruder sitting in a car among trees on my property. I was rather agitated, as anyone would be at finding a stranger on their property, and I was also rather loud, but the intruder actually offered what seemed, at the time, a plausible excuse so I let him go. I lodged a call with the Portland police and, the next morning, the local sergeant of police, Frank Zeigler, who later became Mayor of Portland, visited my office with a constable, to take some notes about the incident. During this interview I mentioned in passing the phone call I had which was ‘accidentally’ switched through to Telstra’s John Stanton instead of the ‘Four Corners’ Sydney office, and raised with Frank my belief that my phones were being bugged, as well as my property being watched.

Some days later Frank came again with information about the ‘intruder’ and his apparently sensible reason for being on my property. Frank had made inquiries in both Victoria and over the South Australian border, in Mt Gambier but the information he had acquired did not support the reason I had been given in any way.

While he was carrying out this inquiry Frank also looked into my suggestion that my phones were being bugged but he could not clarify how or why my call had been transferred to the wrong office in Sydney. Much later, when I began to sort through the confusion of documents which were sent to me from Telstra under FOI, and began to discover Telstra e-mails and other records which showed that they knew, on a daily basis, who I had telephoned and when; when my staff left my business and when I was away, I could only shudder. What on earth had I done to deserve such treatment?

Even the local Telstra technicians seemed to be involved in this process: in one FOI document (K03273), an internal Telstra memo, the unidentified writer offers to supply a list of phone numbers which I had rung (I believe this was around the time of the ‘briefcase saga’ incident which is described in Chapter 11). Why were Telstra employees happy to distribute this private information so freely?

Attached to this document was another which indicated that I was the ‘customer’ referred to. All this seems to indicate that phone calls I had made to a number of clients and friends were being circulated to various people, courtesy of my local telephone exchange. I had previously learned that the writer of this fax was listening in to my private conversations and, when I confronted him with this information, he insisted that he was not the only technician in Portland listening in.

Other FOI documents show that other Telstra officials were checking up on who I rang, and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. As I uncovered more and more of this ‘spying’ I became more and more agitated. By May/June of 1994, as I battled on with the preparation of my claim, I was sinking deeper and deeper into depression.

Much of this information was forwarded to the TIO, who was, after all, supposed to be the independent administration of the arbitration. Not once did I receive a reply from the TIO’s office regarding this particular matter. And still the phone and fax problems continued. Since the problems were still occurring I was in somewhat of a bind. Legally, Telstra had 30 days to respond to any FOI request I lodged so how could I provide evidence to the arbitration regarding faults that only happened the day before? The whole process was getting out of hand and, although I raised this issue with both the TIO and the arbitrator, I didn’t get much help. The TIO would only reiterate that I should lodge my claim to the best of my ability.

Garry Ellicott attempted to ring me on 27 May 1994, using my 1800 freecall service (this can be confirmed from Telstra’s own records). Finally he got through at 7.59 pm. I was at screaming point when I discovered he had tried at 7.51 pm and again at 7.55 pm, reaching a recorded voice announcement both times. On both occasions he was told that my number was not connected. When Garry rang Telstra fault centre to complain about these voice messages the operator told him that she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably rather rude. “How” he asked, “can the customer complain if he doesn’t even know that I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?”

When my telephone account for this period arrived I was again stunned to see that I had been charged for both calls. The 7.51 pm call was charged at 76 cents and the 7.55 pm call was charged at 30 cents.

The Austel COT report talks about Telstra’s fault reporting, recording and monitoring system and procedures regarding these recorded voice announcements on page 125 at point 6.53:

“Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances.”

This is a report compiled by an official, government funded body and yet Telstra continued to tell the public that these faults did not exist, even though many of these non-connected calls were being charged out to customers.

By this stage I had been fighting for 6½ years to have these matters addressed and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request and each request would take 30 days to bring results. No sooner had I faxed information to the arbitrator detailing yesterday’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. Many times I sobbed in frustration. No-one would listen or, if they did hear me, they apparently didn’t care. Or was Telstra playing some sort of cat and mouse game with me?

On a number of occasions during 1994 I was interviewed by the Australian Federal Police in relation to my problems with Telstra and my arbitration. On the following page is a copy of the first page of the transcript of one of these interviews together with a copy of part of page 7 of this same interview. This was the third interview and I answered, in all, more than ninety-six different questions. It was clear that the Federal Police were very concerned at the documentation I had provided for them. In particular they were alarmed by the document shown on page 103 (Chapter 18). The police were asking: How could a caller, who usually called from this number, be identified if he called from another number, apparently somewhere in Adelaide?

During this third interview, Constable Dahlstrom of the Federal Police stated (question 81):

“But it does identify the fact that you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it.”

Clearly Telstra had provided the Federal Police with evidence supporting this ‘live monitoring’. In other words, Telstra had admitted to listening to my private and business telephone conversations “for a period of time”.

If the Federal Police, Telstra or the Government had provided me with answers to these mounting questions as they arose, I would not still be searching for those answers today.

CHAPTER 20

During one of my more severe bouts of depression I re-read Austel’s COT report and stumbled on information I had missed before. This information related to the Bell Canada International testing and Telstra NEAT testing which had been carried out in November of 1993. In particular it related to Bell Canada’s testing procedures. Page 157 of the Austel report shows that the NEAT testing was carried out by Telstra between 8 am and 10 pm (0800 hours and 2200 hours) between 28th October and 8th November of 1993, to the exchange test number at Cape Bridgewater (055 267 211). The BCI test report, dated 10 November 1993, shows that their testing took place on the same dates and at the same times, except for 9 November when there was apparently no NEAT testing, but when BCI stated that they carried out some of their tests.

Now, each NEAT test takes up to 100 seconds and, while it is occurring, no other test of any kind can take place. Obviously the BCI testing could not and did not take place between 28 October and 8 November, as it appears in the BCI Addendum Report on Cape Bridgewater however, just for fun, let us assume that somehow all these tests could have been performed at the same time. The BCI tests needed 15 seconds between each call to reset the system, otherwise the second call would get a false engaged signal and, at the same time the NEAT tests took up to 100 seconds each. When I examined the test reports from both Telstra and BCI, it was glaringly apparent that there wasn’t enough time between 8 am and 10 pm to fit in anywhere near all the calls that were listed.

Below is a copy of two sections from the BCI report showing calls made to phone number 055-267-211, the same number in the table on the previous page. These two tables indicate that a total of 1675 + 328 calls were made from two separate locations (Richmond from 428-8974 and South Yarra from 03-867-1234), over approximately the same time period without clashing. This, of course is impossible

Telstra later used parts of the BCI report to prove that their network was operating up to expected standards. The BCI report was even released to the media, as well as being given to Parliament. But it was obviously falsified because the test calls simply couldn’t possibly have been made in the time frame recorded.

Around June 1994 I challenged Telstra to prove that I was wrong in my allegations about the inaccuracies of the BCI report. I had found a copy of a Telstra e-mail (FOI document number A05254), from a Greg Newbold to a number of different Telstra officials including a Ted Benjamin whose name often popped up in documents that I was finding. This e-mail was very significant in relation to the BCI report debacle. Mr Newbold’s e-mail said:

“Peter Sekuless and I have prepared a draft news release; a one-page media aide for Ian Campbell plus the pre-emptive media strategy itself.

Am now raising with Sekuless the merits/demerits of holding back the BCI info for a “cleansing” program immediately after the mess of Coopers. My thinking is that it would draw the focus from the Coopers stuff and on to our network that works.

Greg”

Then I came across another interesting document. This was an un-dated Telstra minute entitled “Grade of Service Complaint: Mr Alan Smith - 055 267 267. File HA. Ac4/1/18”. In the 6th paragraph of this document is the statement:

“Congestion between Cape Bridgewater and Portland had been prevalent as only five junctions available. This situation was to be upgraded with the cutover of Cape Bridgewater RAX to an RCM parented back to Portland RAX 104.”

RAX and RCM refer to different types of Telstra exchanges (refer Glossary).

Once I had these two documents in front of me I reached for the Austel COT report and there, on page 165, at point 7.33, I found:

“Telstra’s more recent assessment of the effect of the Cape Bridgewater RCM fault on Mr Smith’s service not only conflicts with the contemporaneous report quoted in paragraph 7.31 above, but also does not accord with Telstra’s contemporaneous GAPS record for September 1992 which shows a significantly higher complaint rate of ‘call drop out’ and ‘no ring received’ for customers who were reliant on the defective plant than those dependent on the remainder of the Cape Bridgewater RCM.”

It was no wonder that I was confused. Even the experts were obviously confused. Was FOI document A05254 from Greg Newbold to Ted Benjamin proof of an attempt to ‘cleanse’ an international test report? I struggled to understand. And still my fax line gave trouble. And still the phones played up. I sat and wrote and hoped some of the information I was sending to my advisors and to the arbitrator was actually getting through. The following quotes from two separate government documents demonstrate the problems the fax line was creating:

The first document, dated February 26, 1994, was from Fay Hoithuysen of the Telecommunication Policy Division of the office of the Hon. Michael Lee, MP. This letter said, in part:

“Attached are copies of correspondence received by the Hon. Michael Lee MP, from Alan Smith, outlining FURTHER (my emphasis) difficulties he is having with his telephone and facsimile service.”

The other document, dated 10 June 1994, was from Austel to Telstra’s Group Manager. This document said, in part:

“Mr Smith at Cape Bridgewater continues to express concern about his ability to receive and send facsimiles.”

Austel continued to be concerned because I was regularly contacting their John MacMahon and Bruce Mathews with ongoing evidence of incorrect charging to my 1800 account. When I compared my 1800 accounts to Telstra CCAS and ELMI data (refer Glossary), it was easy to see that I was being incorrectly charged for calls which never connected. I was also forwarding to Austel evidence of numerous pages of my faxes which came out at the receiver’s end as blank pages. And, of course, Telstra charged me for these as if the recipient had received all the information that was NOT on the pages.

As one example of these problems it is interesting to look at what happened the day after I had agreed to abandon the original commercial agreement and sign for arbitration. By this stage in the process I had already discovered this ‘blank fax page’ problem and I had also become aware that these blank pages often had a strange small symbol at the top of each page; sometimes on the left, sometimes on the right. Each of these pages appeared on my Telstra account as taking minutes to transmit so I decided to time the sending of a blank page. When I finally got the fax to work properly, a blank page took only 10 to 15 seconds to go through. What was even more alarming was that these ‘lost’ faxes were being sent either to my legal advisors or my accountant, or to someone else involved in my commercial assessment process. What did this strange little symbols mean, I wondered?

On 22 April 1994 I sent three separate faxes to Austel. These were copies of my billing records for the 1800 service, showing comparisons with customers’ statements regarding the calls they had made to my number and proving that the account was incorrect. Now, I had run my own tests with sending a complex document like a Telstra account and I knew that each page would take about 1.45 to 2.40 minutes to go through.

Although I have asked again and again, in writing and through various legal processes, I have never received an answer to my questions regarding why these pages should arrive at the other end as blank pages, except for the unexplained symbol? In one instance I sent similar documents to my accountant. When his fax journal print-out was checked against my Telstra accounts they both showed the same amount of excessive time to send and receive the documents, even though they arrived blank.

I told my arbitrator I believed that I was losing faxes in the system somewhere and that he was therefore not receiving everything I was sending to him. In particular I raised one instance, on 23 May 1994. In this case Telstra told the arbitrator that the problem had occurred because his fax was busy when my fax was attempting to get through and so my fax simply didn’t go. Whatever happened to my fax hearing a busy signal and trying again? And if my fax reached a busy signal more than once and so gave up trying to send, why was I charged for the call? In fact, even though my phone account showed that, on this day, I was charged for seven non-connected calls to the arbitrator’s office, and even though Telstra has since acknowledged this (in camera), still the arbitrator was not interested enough to investigate.

By this stage I began to believe that the whole arbitration had been orchestrated by Telstra simply to thwart an investigation into their questionable corporate conduct. Those discovery documents that did reach me were coming in bits and pieces, small numbers at a time. I was being drip-fed information in a further attempt to disadvantage the preparation of my claim.

Among the material that was being drip-fed to me I found FOI document K01489 (appendix 5). This Telecom fax indicates quite clearly that Telstra were well aware of the ‘blank fax’ problem and records (last paragraph) their experience with unexplained oddities when testing, particularly the receipt of blank pages which did not even have the sending identification stamp across the top. How many of these unidentified pages did the arbitrator’s office receive when I was attempting to send important claim documents to the arbitrator? And, what would the arbitrator’s office have done with blank sheets? They would have had no way of knowing where the fax had originated so there would have been no way they could let the sender (whoever that might be) know of the problem. Over the space of three years I had three different fax machines which all suffered from this same fault. It seems quite clear that the fault must have been in Telstra’s network and yet still the TIO will not investigate.

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by 11 May 1995. My home account was another $2,000. What a way for an Australian citizen to have to work in an attempt to prepare a claim against a corporation armed with lawyers and staff at their finger tips. In fact, by now, Telstra had set up a special office in their solicitor’s building, just to deal with the COT arbitrations, while the claimants struggled to run the day to day affairs of their respective businesses at the same time that they struggled to prepare their claims, mostly without legal support.

In 1996 Telstra actually admitted that the COT arbitrations had, up to then, cost Telstra something in the vicinity of at least $18 million. All this just to fight a small group of small-business people who were only looking for Australian justice!

Back in June of 1994 however, I asked the arbitrator for extra time to prepare my claim. He allowed only one extra week and yet, as the records show, Telstra were allowed an extra 72 days on top of the original extra 6 months time already given to them by the arbitrator. Did Telstra deliberately delay supply of discovery documents to give themselves more time to prepare their defence? Or did they delay supply to give their defence unit more time to go over the discovery documents before my advisors saw them? By this time, why hadn’t the TIO contacted the Minister for Communications and had Telstra pulled into line? How, in the name of justice, were the members of COT ever going to be able to support the claims they were making if Telstra would not provide the discovery documents the COTs were asking for under FOI?

A Telstra representative was in the arbitrator’s office when Graham Schorer, COT spokesperson, and I presented the arbitrator with my interim claim documents on 15 June 1994. This interim claim material was taken away by Telstra’s defence counsel, Paul Rumble. Even though the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, they did not present that defence until 12 December 1994, six months later. Why did the arbitrator allow Telstra’s defence unit to have access to my interim claim documents when he was well aware that I was still waiting for more discovery documents to come from Telstra, so I could complete my whole submission?

At the same time Graham Schorer contacted the Commonwealth Ombudsman’s Office in Canberra to ask if they would investigate why Telstra would not supply the COT members with their discovery documents. These delays were severely disadvantaging all the COT members: the longer we were kept waiting, the longer our advisors and researchers were kept waiting and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Personally, I began to wonder if Telstra weren’t working to a plan — a plan to simply send me broke before the arbitration was ever settled.

CHAPTER 21

Just by chance, the American movie “Class Action” was released on video while I was preparing my claim. This was a story about a pharmaceutical company that knew about side-effects caused by one of its drugs, but continued to sell the drug anyway. A report had been commissioned by the company and the chemist preparing the report found a flaw in the production of the drug. Now, if my memory serves me right, the parent company chose to ‘lose’ the report rather than spend the money to correct the flaw. What attracted me to this story at the time was the long and drawn out process undertaken by the pharmaceutical company when they released discovery documents to the lawyer representing a group of suffering patients. In the end, the company swamped the lawyer with thousands and thousands of documents at the very last minute so that the lawyer had only a short time to find the missing report. According to the movie, this process of burying important documents amongst numerous irrelevant papers is called ‘dumping’. Shades of Telstra versus COT here!

In my case, another COT member located, among her FOI documents, one of the reports I needed to support my claims regarding rural phone faults: this report had not been forwarded to me by Telstra during my preparation time, when it would have been very useful. This was a report titled “Can We Fix The CAN” . ‘CAN’ stands for ‘Customer Access Network’ which is the line from the exchange to the customer’s premises. This report highlighted numerous alarming facts that had to come to Telstra’s attention during their testing of the CAN. This is the last contact point where a call can be lost but calls can be lost at this point without any faults registering at the exchange end. Even so, when Bell Canada International carried out their original tests in my case they didn’t test the CAN at all. If I had received this report when I first began to prepare my claim, or even towards the end of the preparation of my claim, I could have raised with the arbitrator many more issues which were never addressed — including instances where a number of other rural Telstra customers were severely disadvantaged due to the ‘poor’ CAN.

The very first page of this ‘CAN’ report seems to indicate that Telstra certainly weren’t playing fair with the members of COT in any way and, like the movie, Telstra elected to ‘dump’ approximately 22,000 discovery documents on me (yes, twenty-two thousand!), eleven days after they had submitted their defence even though they were well aware that I had only one month after the lodgment of their defence in which to reply. This meant that I had only just over two weeks to sort through thousands and thousands of pages of information to find the ‘missing link’ which would support my case — evidence which would also prove that Bell Canada didn’t test my phone service as they stated they had in their report; a report which was then used by Telstra to support their defence of my claim. It was Christmas Eve, the busiest period for my business and, with all these documents in front of me, I was lost to know where to even start looking.

PLEASE READ THE DOCUMENT – “CAN WE FIX THE CAN” REPRODUCED ON THE NEXT PAGE, BEFORE PROCEEDING.

IT IS INTERESTING TO NOTE THE PROBLEMS

ACKNOWLEDGED BY TELSTRA IN RURAL AUSTRALIA

Over Christmas, twelve months after I had originally asked for documents from Telstra, I ploughed through what I could, uncovering (too late) a number of documents which would have been most useful to my technical advisor, and to me, when we were preparing my interim claim. Again I asked myself, did Telstra deliberately withhold this information? The arbitrator had a charter, as the ‘judge’ in this matter, to facilitate provision of requested documents but even though I continually asked him to do this for me, none of my requests were fulfilled. I believe he never passed on any of my requests but, at the same time, he directed me to provide some 40 extra documents and numerous pages of attachments and further particulars which Telstra had requested through the arbitrator. These requests to me were made under the same discovery process I had used to request documents from Telstra. I complied on every single occasion, incurring costs that ran into thousands of dollars but, in return, I received nothing from the arbitrator. At the same time I began to feel more and more concerned that something was very wrong with this whole process. Were Telstra and their highly paid lawyers deliberately setting out to destroy me financially before I had even finished my submission?

An oral hearing had been convened on 11 October 1994, under the rules of the arbitration. These rules allowed me to have legal representation if Telstra had legal representation but where would I find the money to pay a lawyer, particularly a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? By this stage I had discovered that at least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another. This meant that all 43 of those companies were not available to me or to any of the COT members because they would be caught in a conflict of interest situation if they took up our cases. In the August before this oral hearing, already five months into the arbitration process, I had also been informed by the TIO, who was acting as administrator to the arbitration, that the arbitrator himself was a senior partner in a legal firm which was also working for Telstra at the same time. Although I raised the issue of conflict of interest, the TIO disagreed, saying that I should just confirm, in writing, that I had been informed of this situation. What could I do? By this time I had run up bills with advisors and secretarial assistants to the tune of $150,000. How could I then demand a new arbitrator be appointed, only to have to start the whole process over again? Obviously the administrator’s approach was five months too late since I had already submitted my interim claim two months before he made his announcement about the arbitrator. I have since been advised that, even today, the arbitrator continues to work as a partner in a legal firm which has large contracts with Telstra.

At that stage though, I felt I had no choice but to continue with the arbitration procedure and no choice but to participate in the oral hearing. Now, the arbitration rules stated that there were to be no lawyers at oral hearings unless both parties had legal representation and the arbitrator advised me that Telstra would not have a lawyer with them so I went to the meeting believing that this would, more or less, be a meeting of equals. I could not know in advance how wrong I was — obviously the rules can be flaunted if you have enough power.

The drive from Cape Bridgewater to Melbourne took five hours and, since the meeting was set to start at 10 am, I set out at 4 am to allow for unforseen delays along the way so, by the time the meeting actually started, I was already exhausted. What I was not ready for was the sight of two of Telstra’s top executives on Telstra’s side of the table, both men with legal training. And, not only did Telstra have these two legal minds on their side, they also had two representatives from Ferrier Hodgson Corporate Advisory, the independent financial advisors to the arbitration. Again I was in the position of a David up against the Goliath of Telstra, with no-one at all to support me.

During this hearing I produced four exercise books of records which I asked to have accepted into the procedure. These exercise books contained the names and contact information of clients who had not been able to reach my business by phone. This was important information, proving as it did that I had not been able to set up the over-40s singles club I had advertised, because of the phone problems. I had not submitted these books before, as part of my claim, because, as I had explained to the arbitrator, the information had been given to me in confidence. I hoped that, by submitting them directly into the care of the arbitrator, the sensitive information contained in them would be secure.

On the day, however, Telstra insisted that the information was not relevant and should therefore not be accepted into evidence. The arbitrator went with Telstra’s suggestion and I was not allowed to submit the four books, even though the information they contained proved conclusively that not only had I lost business calls as a direct result of a faulty phone service but I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going. It was at this point that I finally admitted to myself that the arbitrator was not acting impartially.

By the time Telstra lodged their defence of my claim, on 12 December 1994, I had been fighting for justice for 6½ years. Fighting a losing battle, not because of anything I had done, but simply because I chose to set up business in a rural hamlet which Telstra’s senior board members saw no benefit in upgrading. In this time I had lost a wife of 20 years, who had trusted my judgement that I could create a successful business at Cape Bridgewater and my next partner had finished up in hospital after also trusting my judgement. The oral hearing made me realise that I was truly on my own in this: even the arbitrator couldn’t be relied on to be independent. The other COT members had not been at the oral hearing and so I warned them of what I had discovered but they couldn’t really comprehend the gravity of the situation for us all. As it turned out, my gut feelings were correct: we had been conned by the TIO’s office. The Senate had also been conned by the TIO’s office as it turned out: the TIO’s office had also assured them that this would be a non-legalistic process.

Between 11 October 1994, the day of the oral hearing, and 12 December 1994, the day Telstra lodged their defence of my claim, I continued to search through all the claim material I now had, looking for something to help me improve my position, hoping to find the illusive discovery documents I needed. At the same time I became even more aware of what an enormous toll this was having on my life as well as my business. I was suffering from frequent dizzy spells and stress related pains; I couldn’t swallow comfortably and continually felt as if there was a lump in my chest.

From the very beginning Telstra denied that there was anything wrong with my phone lines. But now, although logically I was sure I was right, I began to have moments where I doubted my own sanity. Not only was my health suffering but so was the health of all those in the small group who continued to support me.

It was at this low point when a letter of support arrived from Fred Fairthorn, local farmer and businessman, stating that it was quite clear to him that the phone system was a disaster area. He referred to problems he had with the system going back six years. Fred wrote his letter in June of 1994 and six years before took me back to the time I first moved into the area. So, Fred agreed that the phones were not always reliable and that they were certainly not up to network standard.

Another incident which spurred me to keep fighting concerns a neighbour, Mr Walter Carey senior. Mr Carey had taken over the next door property after I moved to Cape Bridgewater and, when my claim advisor was researching the phones in the areas, Mr Carey senior wrote of his experiences with the phones.

“I reported the faults many times to Telstra”, Mr Carey wrote, “to no avail. I telephoned Alan Smith and obtained the Melbourne telephone number to ring. Having rung that number I was informed that my number, 055 267 265, was not a business number.

I have questioned my telephone account on several occasions but have no option but to pay as no further account was provided.”

Also in the course of his research my advisor circulated a questionnaire to local residents, regarding their experiences with their phones. Mr Carey’s response to this questionnaire included the following:

Engaged signal indicating phone is always busy

Answer = yes

Recorded Voice Announcements telling people your phone is not connected

Answer = yes

Dead line - caller hears nothing on dialling

Answer = yes

Drop-out - while talking on phone

Answer = yes

Have you reported your problems to Telstra?

Answer = yes

In his letter, Mr Carey went on to say:

“Telstra service is extremely poor at time of reporting this fault to Melbourne. Shearers were engaged and I could not inform them whether sheep were dry - nobody can run a business where phone only works intermittently or is supposedly fixed on many occasions.”

With regard to the shearing incident that Mr Carey refers to here, he was forced to drive some considerable distance from another property to speak to his son who was at the homestead, because he could not reach him on the phone.

On a number of occasions during this period I continued to question Telstra. How, I asked, did they make their calculations for my phone account? My bills were like a yoyo - up one month and down another. My only tool was to refuse to pay the disputed account until they had been investigated but, when I didn’t pay Telstra disconnected my service.

CHAPTER 22

Back in 1992, before Mr Carey took over the next-door property, I had been friendly with the previous owner, Kevin Turner, and often drove over for a chat. Kevin had brought this property intending to turn the lower section, close to the Blow Holes, into a natural golf links: even going as far as having plans drawn up by a professional golfer (I still have a copy of the plans for the golf course). Financial backing had been discussed for the project, sign boards had been erected and brochures printed and distributed to prospective investors. The Commonwealth Development Bank had viewed the proposal and noted that it was a good proposition.

During the time Kevin was working on this proposal I had to drive to his place on many occasions because his line was constantly engaged. Or was it? His phone number was 055 267 275 and mine was 055 267 267 and we often suffered from crossed lines as well. FOI documents later showed that Telstra was well aware of this ‘crossed line’ problem, along with many other complaints from the area. I also have a letter from a Mr Broadhurst in Violet Town, Victoria who had tried, unsuccessfully, to reach Kevin’s phone number on a regular basis throughout 1992 and who had also experienced phone problems when trying to contact me. He wrote to ask if he could stay at my camp while he completed his business with Kevin. In relation to problems reaching me, Mr Broadhurst wrote:

“I have tried to reach you by phone on many occasions only to get a recorded message saying that this number has been disconnected. On other attempts I get an engaged signal that lasts for hours. I would like to make a booking with you for the camp. As I cannot reach you, could you phone me as soon as possible?”

Mr Broadhurst supplied his phone number for me and, when I phoned him, he told me of the similar phone problems he had trying to reach Kevin as well. Could Telstra have been so blind? What drove them to continue to down-play these continuing phone faults? FOI documents would later show how I was treated as the enemy, not as a customer with a legitimate complaint.

Although I can’t say for sure that Kevin lost his business because of the phone problems, and I can’t say that my marriage was lost only because of the phone problems either, it is interesting to think about what might have happened if someone interested in investing in Kevin’s business had been able to reach him. Maybe Cape Bridgewater would now have a golf course. Who knows?

Although this might seem to be a story about telephones it is actually about human suffering, caused by a large corporation with too much power. The ‘spin doctor’ approach to genuine complaints about service certainly contributed in no small way to the ruination of a quality of life for me, and probably contributed to many lost opportunities for other people in rural areas who suffered from similar phone faults.

The letters from Fred Fairthorn, Walter Carey and Mr Broadhurst, along with many similar letters, were all submitted into arbitration for assessment and yet the report produced by the so-called ‘independent’ technical unit clearly stated that “...a comprehensive log of Mr Smith’s complaints does not appear to exist” . The fact that I had also submitted a list of 183 separate faults which had occurred between late 1989 and early 1994 seemed to be of no consequence. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults which had been logged by Telstra’s own three fault centres in one 8 month period alone, from January to August in 1993. As an added bonus I included more than 70 letters which I had received from people over the years, letters describing difficulties in reaching me by phone. Some of these letters were even written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems. This made no difference because DMR/Lanes, the arbitration’s technical resource unit, indicated later that these documents were not given to them by the arbitrator for assessment.

The letters from Telstra employees prompted me to contact Telstra union officials and explain that my complaint was not with individual, everyday technicians but was rather with the corporate management level. It was obviously senior people in the organisation who were creating the problems by refusing to correctly address the constant complaints from the Cape Bridgewater area. Apparently they believed that, by ignoring these complaints, they would save money. And these complaints weren’t only coming from Cape Bridgewater and other rural areas; many complaints were being lodged from metropolitan exchange areas too. Clearly, until Telstra management addressed the corporate culture of their own organisation, the list of complaints would grow.

During his time as Minister for Communications, Senator Kim Beasley of the Labor Party showed his concern with the way Telstra’s Protective Services Unit spied on their own technicians and other employees, documenting their movements while they were on sick leave, so it was not surprising that the COT members believed they also were being spied on. The Protective Services Unit has still not provided any explanation of some of the information they appeared to pluck from thin air: they have never explained how they knew in advance what my movements were, and they have never explained how they knew when my staff left my office.

One instance of Telstra’s apparent ability to read ‘between the lines’ relates to the O’Meara Bus Company incident mentioned previously, in Chapter 6. As you may recall, I had written to Telstra asking for a guarantee that the phone network would work correctly, so I could assure the bus company that they would be able to reach me to place bookings. I wrote this letter to Telstra without ever mentioning the name of the bus company I was tendering to but, in 1994, among documents sent in response to one of my FOI requests, I found a copy of my own letter with the company name “O’Meara” scrawled across the top of it. Were Telstra intercepting my mail? Or were they listening to my phone conversations? Or both? Whichever way they acquired this information, the issue is that this was spying, way back in 1992, long before the arbitration process began in April 1994. And this is only one example of the spying that took place, others will unfold as my story continues, but the issue of spying on customers was a major factor in my decision to publish this story. Someone has to expose Telstra’s power and alert the Australian public to the way they manipulated the legal system. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the very core of Australian democracy.

Documents later acquired under FOI, and then provided to the Australian Federal Police, show that Telstra officers also made a habit of documenting private and business calls I received. This documentation included the names of the people who called me: my wife, my son, Austel and the TIO’s office. Was nothing ever private during this saga?

By this stage I had begun to wonder about some of the information that was being passed to the members of COT (see page 80) by other Telstra customers around the country who had also had problems dealing with Telstra. Was there some organised crime unit within Telstra I wondered? Why was my private business known to a corporation only concerned with communications? Was there more to Telstra than it seemed on the surface? At about this time one concerned citizen wrote to me, expressing concerns she also had regarding the possibility of organised crime within Telstra. I later passed this letter on to the Australian Federal Police. It has not been returned to me.

CHAPTER 23

In Chapter 17 I related the story of how Mr Matherson of Austel helped me test two different model T200 phones on the one line in an effort to find out if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. Documents which I later acquired also showed that Telstra was aware that this fault often occurred in moisture prone areas like Cape Bridgewater and that they were also aware that the local exchange suffered from ‘heat problems’. Now, when I received my copy of Telstra’s defence of my claims, I found that it included a 29 page report titled “T200”. This document reported that, as a result of testing in Telstra’s laboratories, it was clear that the ‘lock-up’ problem with this phone had been caused by beer which had been found inside the casing of the phone.

It is interesting to note that the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994, some 12 days later. Still, according to photographs included in this report, the outside of the phone was very dirty and, according to the technicians, when they opened the phone up, the inside was wet and sticky. Analysis of the ‘wet and sticky’ substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hookswitch’ to lock up. The natural inference here was, of course, that my drinking habits were the cause of all my phone problems. The technicians didn’t know of course that I had tested two different phones on that line and still found the same fault.

A number of questions were immediately raised by this report. When the phone left my office it was quite clean — why did it arrive at the laboratories in such a filthy state? How did the ‘beer’ get inside the phone? Who would have a reason to pour ‘beer’ into the phone and why? If the addition of ‘beer’ was not deliberate, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me since I only rarely drink beer, and then only when I am out socially. I usually only drink Scotch or wine because of a medical problem which means gassy drinks, like beer, create acute discomfort for me.

As soon as I read this ‘beer-in-the-phone’ report I put in a request to the arbitrator, asking to see a copy of all the laboratory technician’s hand-written notes so I could see how they actually arrived at their conclusion. I had appointed my own forensic document researcher to look over the documents when I received them and he had provided me with his credentials as well as signing a confidentiality agreement, stating that he would not disclose his findings to anyone else. Although I passed all this on to the arbitrator, the only response I received was another copy of the original report.

This lack of assistance from the arbitrator is even more shocking because, only a few weeks before, he had allowed Telstra’s forensic document researcher to have access to my personal diaries. It seems there was one rule for Telstra and a different rule for the COT claimants. My gut feeling after the oral hearing in October 1994 was looking more and more to be correct. The arbitrator was definitely favouring Telstra; allowing them access to whatever information they requested but denying me the same access to information I needed.

I cannot begin to explain the anger that simmered inside me. If only I could expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ episode. I knew they had faked the evidence but I couldn’t prove it. What else would they do to defend their faulty phone network? It didn’t seem to matter who I contacted about this fax line — Senators, the arbitrator himself, the arbitrator’s secretary, no-one cared about the truth. It seemed that Telstra management would do anything in their power to prove that there was nothing wrong with the phone lines into my business.

As explained in Chapter 20, during the period when I was having the most trouble with sending and receiving faxes I actually alerted the arbitrator to the problems I was having and the arbitrator’s secretary later acknowledged that she did not receive a number of faxes from me during my arbitration.   Still I was charged by Telstra for all the faxes which left my office, hopefully heading for the arbitrator’s office even though, on a number of occasions, they never arrived there.   Telstra’s own records show, in fact, that some of these faxes never arrived at their intended destination. Where had they vanished to? My frustration increased when I then found that all these fax faults were supposed to have been caused by ‘beer’ which I knew, without any doubt, could not have been spilt inside the phone before the Telstra technician removed it from my office for testing.

I set about accessing Telstra’s technical analysis data covering particular times when the fax problem was at its worst. These documents showed that the ‘lock-up’ fault had been occurring in the network system since at least August 1993. This led me to ask the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone not only for the 12 days between when the phone left me and when the technicians opened it up, but also from August 1993 to May 1994.

Telstra had supplied a new phone to replace the ‘drunken’ one they took away and, surprise, surprise, according to their own data, the same 10 - 15 second lock-up problem was still apparent right through to June 1994, five weeks after the ‘drunken’ phone was removed and replaced. Perhaps the phone line itself was ‘under the influence’? What a sad episode for a company of such standing in the community. How desperate must they have been to resort to such skulduggery when they were only defending themselves against one broken-down cook and camp operator. Sad indeed.

In Telstra’s defence of my arbitration they also state that this telephone was received at their laboratories in a very dirty condition. Of course, this is not the truth either. The phone was certainly not ‘in a very dirty condition’ when it left my premises. It is interesting to note that, before the technician took the phone away for testing, we both used a nail to scratch our names in the (clean) cradle where the receiver sits. Much later, in a copy of Telstra’s report on this phone, I came across the photo reproduced over the page. This is supposed to be a photo of my phone as it was when it arrived at Telstra’s laboratory. Isn’t it interesting to note the layer of dirt OVER the inscribed signatures? It certainly makes me wonder what lengths Telstra will go to, in order to discredit me.

Neither Telstra nor the TIO have explained how all this dirt and grease appeared OVER our signatures. When the technician collected this phone from my business, if it was as dirty and greasy as it is in this photo, then our signatures would be indented INTO the dirt rather than covered BY the dirt. I also have to ask, if the phone was that dirty, wouldn’t both the technician and I have automatically wiped away the dirt BEFORE we engraved our names on the phone?

These are just some of many unanswered questions I have raised with the Government over the years. How can they continue to protect Telstra when they have this evidence of such unlawful conduct? The Government is fully aware that tampering with evidence in a legal process is a criminal act. First we have dirt and grease splattered on a clean telephone and then we have beer poured into the phone: how sad this has all become.

CHAPTER 24

There were many, many other misleading statements made under oath by Telstra’s defence unit and their technicians which are too numerous to bother with here but most disturbing were the signed Statutory Declarations made by some of the local technicians. Even though they knew at the time that Telstra’s network system into the local exchange was not up to standard, they signed these legal documents, blatantly ignoring the problems and insisting that everything had been all right during the period covered by my claim, except for some minor, every-day type faults.

Some of these signed statements would almost have been laughable, if the situation hadn’t been so serious. One local technician even went so far as to say that he knew of no other business in the Cape Bridgewater area who had experienced the type and number of phone problems that I had experienced. This statement included the comment that the technician had a friend, a stock farm agent, who lived at Cape Bridgewater, and he had never had phone problems when he lived in Cape Bridgewater. When I checked Telstra’s own fault data, however, lo and behold, this very friend had, in fact, complained 7 times in a matter of weeks during early 1994, including complaints about his fax line.

Further, between 1988 and 1993, I was the only tourist operator in Cape Bridgewater: the other residents were fisherman and farmers who did not generate any tourist activity in the area and so were not so reliant on the telephone as I was, particularly for calls outside the local area.

Another set of incorrect statements was lodged by three local technicians who were in charge of my service complaints. These men stated under oath that the original (old) exchange at Cape Bridgewater, back in 1988 when I moved to the area, had five incoming and five outgoing lines when, it was later proved, this old RAX exchange actually only had four incoming and four outgoing lines. One of these technicians went so far as to state that any congestion caused by this ‘five in and five out’ situation would not have affected my service much during business hours. All my calls pass through the Portland exchange before travelling on to their destination and, as we now know from Telstra’s own archival documents, Telstra secretly knew that congestion was prevalent between the Cape Bridgewater and Portland exchanges.

The saddest thing about the statements from these three technicians is that, if they truly believed that this old exchange had five lines in and five lines out then surely they were not doing their jobs properly? Surely one of them would have noticed that there were only eight final selectors? In real technical terms ten lines will carry 41% more traffic (in erlings) than eight lines.

By the time I received Telstra’s defence documents I was completely out of money. How could I employ a technical ground crew to assess the technical side of Telstra’s defence? I still owed George Close, my previous technical advisor, $25,000 — I couldn’t afford to hire another advisor. In fact, I was so heavily in debt by then that another friend mortgaged her house to the tune of $20,000 just to keep me going and came to the camp to help out in the office with the assessment of further FOI documents now arriving. Thankfully people I knew could clearly see how right I was and they continued to support me but, in practical terms, my team came down to one house-wife/mother and one camp operator — pitted against the power of Telstra and their vast team of highly paid legal and technical experts.

The Federal Police had shown an interest in the many issues I had raised with Austel and finally they came to Cape Bridgewater to interview me. My friend, Cathy, operated the phones in the office for five hours while the police taped their interview with me. During this five hour period Cathy experienced a number of incoming phone faults — with the phone alarm bell ringing (two rings, stop, one ring, stop — then a dead line).   The visiting Federal police could see for themselves what was happening. Cathy then made her own Statutory Declaration, telling the police about a survey I had distributed some months before, back in late 1993, through the Ballarat Courier Newspaper. I had experienced an enormous number of complaints from the Ballarat region after I advertised my singles club project and this survey was taken to prompt people to write to me with their own experiences with phone faults in their area. I asked newspaper readers to send their complaints to me, care of the newspaper, and Cathy (who was living in the area at the time) had agreed to collect the mail for me. The issue with this survey which Cathy thought important enough to include in her Statutory Declaration, relates to collection of this mail. On two separate occasions Cathy phoned the paper and was told that, yes, there was mail waiting for her to collect but, when she arrived at the newspaper’s office, that mail had mysteriously vanished. Who had collected our mail and why would the results of this survey be so interesting to someone else? What did they intend to do with the survey results?

So, here I was, more confused, frustrated and angry than ever, with no money, $140,000 further in debt because of the resultant and consequential losses created by this arbitration farce. That $140,000 later grew to well over $200,000 and it continues to grow while these matters are not addressed. Remember, on 23 November 1993, both the chairman of Austel and the TIO had assured the COT four (and the Australian Government) that this would be a fast-tracked, non-legalistic process which would take only a matter of weeks. When I received my copy of Telstra’s defence documents however they were accompanied by a bound document entitled “Telstra’s Legal Submission (1994)” (my emphasis).

How could this be when, immediately before we signed for arbitration, the TIO’s legal counsel had assured us that the whole process had been specifically designed to give the claimants natural justice? How could this be, when the TIO himself had confirmed that the arbitration process would be based on the existing commercial agreement? I had trusted these two people. They represented hope after years of trying to deal with the underhanded tricks of Telstra. They represented the legal system to me, and they represented justice. I had believed that we were finally on the road to the end of all my worries, back then when we signed for arbitration. And now this document shattered all those hopes, again, along with all the trust I had put in the system and in these two representatives of justice. Would this saga never end?

On 3 December 1993 the TIO wrote to Telstra (see following page), clearly acknowledging his understanding that this was to be a Fast Track Settlement Procedure. It is interesting to note that he also refers to appointing an assessor and makes no reference to an arbitrator. The appointment of an assessor is appropriate for a commercial assessment, which is what the COT four had signed for. This agreement, that we signed in good faith, was legally binding -- so what happened to change this situation? Why did the TIO change the rules? Even Austel has acknowledged, in letters to the COT four, that there was no mention of an arbitrator in the document we signed for the Fast Track Settlement Process. What happened to cause the TIO to then force us into this highly legalistic and costly arbitration process? Could it have something to do with the fact that the TIO later became a Government Minister?

CHAPTER 25

When I originally signed for arbitration, the TIO had confirmed that all the rules and regulations surrounding the original commercial agreement would remain in place. These rules had included a confidentiality agreement which stated that none of the claimants could ever disclose the value of their award, if an award was made. Remember, the COT four signed for arbitration under severe duress, believing that we had no other alternative and because we were all running out of money to finance our fight for justice.

After reading Telstra’s defence documents I went back to the arbitration rules. Imagine my astonishment when I discovered that the confidentiality agreement section had been changed to suit Telstra’s agreed rules of arbitration. Now I discovered I was not allowed to disclose anything at all to do with the arbitration. Obviously the rules I signed for at arbitration were not what I had been told they were. The agreement which I was advised to sign by the TIO and his legal counsel prevented me from disclosing information relevant to the arbitration, including claim and defence documents. Because I believe that Telstra acted in concert with the arbitrator so that not all of my claims would be correctly addressed, I have now broken my agreement because I believe strongly in the legal rights of all Australians. I also believe strongly that we should all respect the law but, after everything I have suffered through over these past ten years, I no longer believe that our Australian legal system will necessarily ensure justice for all. The COT arbitrations have been a farce and therefore the rules, drawn up ostensibly to ensure justice, are also a farce. If this book contravenes the confidentiality agreement, so be it. The truth must be told, and it must be told to the Australian public who have all relied on Telstra to provide the telecommunications system for the whole of the country.

Christmas 1994 slid past in a blur and I found myself into the new year of 1995 with only two weeks left in which to submit my reply to Telstra’s defence, and thousands and thousands of discovery documents to sort through. Once again the stress was getting to me and my health was deteriorating fast. Not only was this affecting the preparation of my response, but it was seriously damaging the running of my business. The festive season is always the busiest for bookings of course, but I was then averaging debilitating giddiness attacks about twice a week. Fortunately Cathy had, by this time, moved into the camp house. Without her assistance I would never have survived through this time.

Garry Ellicot came to Cape Bridgewater for a brief stop-over and together we worked through New Year’s Eve while Cathy went with her sister and brother-in-law to see in the New Year in Portland. Some time after 1.30 on the morning of the first of January, while Garry and I were still labouring over my reply, the troops arrived back from the celebrations, armed with a bottle of Scotch and a bottle of Port. After all the hard work and long hours we had put in over the past two days, a couple of drinks saw Garry and me out like lights. The following day Garry flew back home.

February saw the camp fairly heavily booked, thank goodness. Tony Speed, year 7 co-ordinator for Hamilton High School (now Bainbridge College) brought his group along, as he had every year from 1990. Even with major problems contacting me on many occasions, he is still a regular customer. His support, and that of many other regular customers, has played a big part in keeping me going through the worst times.

After being here in the February, and because he had experienced problems reaching me by phone from his very first contact, back in 1990, when he returned to school Tony wrote describing his continuing concerns about not being able to contact the camp by phone. In part of this letter he states:

“I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week March 1st to 5th I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was ‘dead’. This was extremely frustrating and had I not been aware of Alan’s phone problems, I would have used another camp site.”

Tony and his group had stayed for a full five days, following closely on the heels of a group from the Birchip Community Centre, who have come regularly since 1988. My records from this month show that members of the Birchip group continually complained that my coin-operated gold phone, installed for the campers use, was ‘always on the blink’.

Tony’s group left on a Friday and Lake Bolac Secondary College were due the following Monday and now I was even closer to running out of time to send in any further supporting claim material. I felt like everything was conspiring against me. Of course, the main part of the problem, and the part that the TIO’s office never seemed to grasp, was that I wasn’t just ‘running’ my business, I was also working in my business, supported only by part-time staff. How could I successfully prepare such a complicated claim and response during the busiest period of the year for my business (November to May)?

If I had only had a reliable phone service from the very beginning I would, by now, have been in a position to hire at least three full-time staff, supported by daily, part-time waitresses. But since I was not in this position I had very little time available to even think about my claim against Telstra. I certainly had very little time available to prepare the claim and the consequential losses continued to mount: all because Telstra would not admit that the phone service was totally outdated and not coping with the volume of calls. I could not believe the position the COTs now found themselves in, through no fault of their own: a handful of small-business people pitting their wits against the legal minds of some of the largest corporations in the country.

Back on 6th January I had submitted to the arbitrator a three page list of procedural documents (refer Glossary), asking him to request these documents from Telstra under the arbitration agreement. Come March however, two months later, and I was still waiting. I was at a loss to know where to turn for help.

Again and again I was faced with the same tactics. Every request I made of the arbitrator continued to bring a roar of silence — certainly no documentation appeared. Worn out and frustrated, my irritation with the arbitrator grew worse each day.

On 23 January 1995, in response to an earlier letter dated 13 January 1995 which I had sent to the arbitrator asking for information about the Bell Canada report and how they arrived at their findings, I finally received a letter from the arbitrator in which he noted that “Telecom does not consider it has any further information of relevance in its possession.” The arbitrator goes on to ask me to respond to this comment within 24 hours in order to “be certain that there is no confusion between the parties as to the documentation which is being sought.” As requested, I responded the following day. My fax account shows that this two page response left my office and took 2 minutes and 19 seconds to travel to the arbitrator’s fax. This length of time indicates that there were indeed two pages as most faxes take about 1 minute per page to transmit successfully.

According to the rules of the arbitration, all documents sent to the arbitrator must be copied to the other party (in this case, of course, that other party is Telstra).

Twelve months after my arbitration procedure was completed, through the persistence and support of the Commonwealth Ombudsman’s Office and under FOI, I was provided with information that showed that Telstra did not receive my response of 24 January 1995, which had been faxed to the arbitrator. There were also another 42 claim documents, which had been sent via fax at other times, which, according to their records, never reached Telstra’s defence unit, even though my fax account indicates that they reached the arbitrator’s office.

In further relation to the Bell Canada report and the tests they allegedly carried out at Cape Bridgewater, another similar FOI document, N00040, which appears in Chapter 29, indicates the importance of my persistent requests for data proving that the Bell Canada tests were done on the days shown in their report.

This document, dated 20 June 1994, clearly shows that there is an error in the tests from Richmond to the Cape Bridgewater PTARS, 055 267 211 as detailed in the BCI original report. Unfortunately, I did not receive this document until three years after my arbitration had been completed. It was supplied at that time by another COT member.

Three weeks after my arbitration had been completed and my appeal time had totally expired I received three more FOI documents (N00005, N00006 and N00037). Document N00005, dated 6 September 1994, from Telstra to Bell Canada, states, in the second paragraph:

“Specifically, the start and finish times for the test run from Richmond digital exchange (RCMX), test line 03 428 8974, to Portland exchange, Cape Bridgewater RCM (CBWR) number range, test line 055 267 211, (detailed in section 15.23 of the report) are impracticable. The number of calls made during the test run could not have been completed within the time span shown and the test run would have clashed with other test runs performed within those times.”

and document N00037, an internal Telstra e-mail headed “Smith’s Query on BCI Tests”, states, in part:

“Mr Smith is correct in the suggestion implied in his query that the test results recorded in the ‘Addendum - Additional Tests’ part of the BCI report to Telecom, 1 November 1993, are impracticable.”

Since Telstra had not sent me copies of these four documents before the end of the arbitration procedure 11 May 1995, how could they turn round and tell the arbitrator on 13 January 1995 that they considered they had given me everything they had which was relevant to the Bell Canada report? The Canadian Director General of Telecommunications Policy agreed (see page 141) that I should contact BCI regarding the alleged errors in their test report but, although I wrote to BCI in Canada three times, I have never received a reply.

Further information relating to the BCI report came to hand much later, as this book was nearing completion. A copy of a report from Hansard, detailing discussions which took place in the Senate on 26 September 1997 was forwarded to me late in August of 1999. This report indicates quite clearly that Telstra misled the Senate in regard to the BCI report. Two pages from Hansard are reproduced at the end of this story, with a commentary, starting on page 223.

While the group from Birchip were at the camp I was visited by people from Ferrier Hodgson Corporate Advisory (FHCA) who, along with a representative from Telstra, were coming to assess my financial losses resulting from the phone difficulties I had been suffering. FHCA were supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater and I had been led to believe that they provided just such a list to Telstra, but I never actually saw any documentation myself. Later I was to uncover some rather unsavoury information in relation to FHCA but on the day of their visit, because the Telstra representative had been delayed by poor landing conditions at the local airport, the FHCA people had time for a leisurely look around the camp and the local area in general.

Under the rules of the arbitration, neither the resource unit, the technical advisory unit or FHCA were allowed to be alone with either Telstra or with me but there was not much we could do about the two hour delay between the time FHCA arrived and the time Telstra arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived we first visited the once-proposed golf links at Kevin Turner’s old homestead. It was then that I began to recognise FHCA’s true colours: everything I said was ignored or negated. FHCA, it seems, already had fixed ideas about this case.

Perhaps it was my early years at sea as a 15-year-old, perhaps I was just being ‘streetwise’, but whatever you like to call it, I was not going to ignore my feelings again. FHCA’s attitude and the way they played down my business in front of the Telstra representative was a clear indication of what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without including me, and being aware that I couldn’t leave the camp site because the Birchip group were in residence and besides, this being the holiday period, there was always the chance that passing tourists might want a bed for the night, I had arranged lunch at the camp. Cathy had brought fresh bread rolls in town and I provided fresh pasta and salad with three different cold meats. My offer of lunch was, however, declined and the others all adjourned to the Kiosk by the beach, totally in opposition to the rules of the arbitration. And what I could I do?

They all returned later, but then stayed only another 15 minutes before leaving for Melbourne. I tried to introduce evidence which supported my position but what I was not aware of was an arbitration procedure rule which means that late information, if not considered relevant, will usually not be accepted into evidence by the arbitrator. In my case, much of the information I was receiving from Telstra under the discovery process (in the form of FOI documents) were arriving months after my original request. Part of the information I attempted to introduce a this stage included copies of brochures and other information obtained from businesses similar to the business I had hoped to build here; businesses which provided a guest house set-up for week-end get-aways. A number of professionals in the tourist industry are convinced that my situation, right by the sea, would be ideal for this kind of business but now, after all the energy I have spent just fighting for a decent phone system, I don’t have the energy and enthusiasm I once had, nor do I have the will to struggle any more, particularly when I look back at the ruined lives scattered along the road behind me.

Anyway, although the brochures and other documents that I gave to FHCA on this day were not accepted into the arbitration process, I have never set eyes on this information again, not even when some of my claim material was finally returned to me after the arbitrator had handed down his findings.

CHAPTER 26

With most of my days taken up with camp duties during this holiday period, I only had the evenings to work on my final claim material. Before I had come anywhere near completion of the collation of the first 20,000 documents that had arrived after Telstra lodged their defence, more had been delivered. With all this paperwork where was I to find enough space to sort them out so I could refer back and forth among them? The Australian public purse might well have been paying Telstra’s legal bill but I wasn’t getting any support at all: I couldn’t even afford to hire a law student to help. And all any of us in the COT group were trying to do was achieve simple justice for ourselves and, at the same time, alert the Australian public to the cover-up being orchestrated by Telstra. Telstra just seemed to be doing anything they could to stop us.

Now, well into 1995, I was still struggling with the enormous task of attempting to collate all the FOI documents I was receiving, so late into the process, into some sort of sensible order. Because it seemed to me, with my lack of experience in legal matters, that the arbitrator was not accepting any more material in support of my claim, I believed I could not lodge these documents as further evidence even though Telstra’s CCAS technical data sheets, when compared to my Telstra accounts, showed clearly that I was still being charged for calls which never connected. Instead I phoned the arbitrator to ask for another oral hearing. I wanted to ask the technical resource unit how best to lay out all this evidence; I was concerned that, because of my lack of technical expertise, they might not understand what I was trying to show. During this phone conversation with the arbitrator I explained that I now owed my technical advisor $25,000 and could not afford to continue to run up any more expense.

The arbitrator advised me to continue working as I had been because DMR, the technical resource unit, would be visiting Cape Bridgewater shortly and they could discuss the presentation of my material with me then. Before that visit occurred however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office. This new company was Lanes Telecommunications, run by a man who had previously worked for Telstra for 20 years.

Eleven months down the track and now we are told there’s a whole new ball-game, a new resource unit is to access our claims and, to add insult to injury, an ex-Telstra employee is to be the main player.   Ann, Graham and I made it quite clear to the TIO that we were not happy about this and so DMR Group Canada were brought in to the process to alleviate our fears. DMR Australia, a company with a high reputation in the telecommunications industry, had signed the original agreement but then pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. This situation raises two questions: Did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could DMR pull out of a signed contract?

The TIO advised, in writing, that Lanes would only assist DMR Group Canada but, as it turned out, Lanes did most of the assessments. This was not according to the written agreement forwarded to me by the TIO: once more it seems that the TIO had misled me before I signed for arbitration.

All this on top of having to cope with an arbitrator who was a partner in a law firm which was doing contract work for Telstra. It was almost too much to bear. I felt as if the whole world was ganging up on me, as if the whole world supported Telstra and no-one cared what happened to the COT four. Surely it couldn’t get any worse? But it did.

As April 1995 rolled around, even more tricks of the justice trade were unearthed. On the 6th April a Telstra official arrived at the camp and we then collected a representative from Lanes from the airport. Together the three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who apparently never had problems with his phone - until I uncovered the agent’s complaint records).

By this stage in the process I had found a number of documents pertaining to congestion at the local exchanges. One of these FOI documents, numbered K01003 and dated 7 April 1994, twelve months earlier, stated:

“At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.”

Another, titled “Cape Bridgewater COT”, and dated April 6 1994, stated:

“Chris: Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE - R (PORX) it was decided to increment this route from 30 to 60 CCTS.

I have reiterated to all parties concerned the importance of getting this project done ASAP.

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).”

The reference to an increase from “30 to 60 CCTS”  refers to an extra 30 circuits into Portland. This was a 100% increase in the phone route (which therefore would create a decrease in congestion) into Portland exchange, not 30% as reported in Telstra’s FOI document K01003. To the credit of the people from Lanes, when we arrived at the Portland exchange, it was clear to them that Telstra had under-estimated this decrease in congestion by 70%. The Telstra officers on duty at the Portland exchange at the time seemed a touch embarrassed at the error uncovered by Lanes. These technicians were not aware of a phone call that I had received the previous month, from Frank Blount, Telstra’s CEO. It is, of course, interesting to speculate on why the top man in such a large organisation would take the time to phone a small holiday camp at the far end of the State, particularly if everything I had been saying to Austel and to the politicians was not considered to be relevant. The fact is, he did ring me, and I took the opportunity to point out my belief that both Portland and Cape Bridgewater exchanges had been suffering from congestion for some years. He gave me his word that he would investigate my theory.

FOI documents show that he was a man of his word. What is more, his investigation proved that I was right. The congestion was clearly confirmed in a Telstra internal memo dated 30/3/94 (FOI document K01007) which states:

“On 27th March Mr Smith complained that he did not receive two calls on Sunday night from Melbourne. The customers calling Mr Smith received “busy Tone”. During the period 20:00 to 21:00, Telecom’s traffic monitoring equipment indicated that the amount of calls being made into Portland exceeded the available junctions. It is probable that the callers to Mr Smith in fact received tone indicating congestion in the telephone network into the Portland area.”

This memo raises another question, quite aside from the fact that it recognises problems with congestion into the Portland exchange: would ordinary callers actually recognise the difference between a ‘busy tone’ and a ‘congested tone’ which sound very similar to the untrained ear? It also indicates the technician’s acceptance of congestion at the Portland exchange. In the case of my business, this situation was compounded by the fact that, after first negotiating the minefield of congestion at Portland, calls were then switched through to the RCM exchange at Cape Bridgewater where they encountered even more difficulties created by heat and other problems. No wonder my customer’s complaints continued to mount, even while my arbitration was in progress — each call had to cross two separate hurdles before there was any chance of actually connecting to my phone!

On 6th April, while the Lanes representatives were in Cape Bridgewater, I again attempted to raise the incorrect billing issues. According to the Lanes people, the arbitrator had instructed them not to assess any new claim material. Naturally I was most irate. This was a complete turn-around by the arbitrator who had assured me that, if I discovered any new information among FOI documents which I received late, that information could be presented to the technical resource unit when they came to the camp. I had burned the midnight oil night after night to have my evidence prepared before the technical team arrived and it was clear that all this new information would have further supported my allegations. I was so angry, in fact, that I managed to have him at least look at one document (below) while the Telstra official was still there.

How could I be charged for a 9.49 minute call on 13 January 1995 at 11.50 am, I asked, and then for a 42 second call at 11.57 am? This is an impossibility.

This caught the attention of the Lanes people and I was able to offer further examples of incorrect charging on this 1800 account, both on 10th and on 11th January. The account showed calls from my home number to the camp number. According to my diary notes, both those calls registered an engaged signal, but both were charged as having connected. And again, on 13 January, there were similar examples of more incorrect charging. Clearly incorrect charging had been running rampant through Telstra, just as this copy of my account shows. This document was included in my claim.

Neither the Telstra official nor the people from Lanes were prepared to comment on this evidence at the time, although I was assured that the matter would be taken up and addressed as part of the arbitration. The Telstra and Lanes representatives left shortly after this — together. Together, and without me, was, of course, in direct breach of the rules of the arbitration. What private conversations took place between these two? The answer to that question is probably only known to the participants themselves (and perhaps the arbitrator?).

Both the resource units were now preparing their reports and I had a gut feeling that the COT members had been sold more than a pup. I felt as if I had been crucified by the very person who was supposed to be delivering justice, my arbitrator. By this stage he had not once investigated my questions regarding why my fax and my phones continued to create problems. I was now convinced that the arbitration was just a sham, instigated with the single aim of ‘shutting me up’ by providing some sort of minimum award payment.

CHAPTER 27

Cathy was now involved in the business as a partner but I had only been able to pay her very minimum wages from early 1994. After Lanes and Telstra left we had quite a disagreement about my next move. I believed I had a great idea (Cathy disagreed). The Commonwealth Ombudsman’s Office had been very supportive of my allegations concerning Telstra’s defective supply of the discovery documents I had requested under the FOI act. Throughout this whole awful saga they had, again and again, proved themselves to be truly impartial. What a breath of fresh, clean air!

It was perfectly clear that this was one government department that operated strictly according to the principals of natural justice. Based on my knowledge that this office was involved in preparation of a report on Telstra’s failure to provide the COT’s discovery documents under the FOI Act, I guessed that this office would keep a copy of every document I had faxed them, as well as all the documents they had faxed to me. I was sure I was onto a winner here. I asked the Commonwealth Ombudsman’s Office to use my 1800 freecall number for all future calls because I knew that they would document the number of calls they made in relation to my complaints. I was convinced that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

Two years later, on the 28th February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all the communications between my office and theirs. This document formed part of their report to Telstra’s Corporate Customer Affairs Office. This report showed that they had received 315 faxes from me, with 1369 attachments and they had sent 21 faxes to me with 209 attachments. And it also recorded 163 calls from my office to theirs with 43 from their office to my 1800 account. Bingo! Telstra, however, had charged me for 92 calls from the Ombudsman on my 1800 account over this same period. I have lost another three pages of 1800 accounts for the same period but have not bothered to have them replaced until Telstra explains the difference in these figures. Forty-three calls registered by the Commonwealth Ombudsman’s Office against 92 calls actually charged by Telstra needs some explaining. As of December 1998 Telstra has still not provided me with a rebate for these incorrectly charged calls, nor have they made any attempt to explain such a high margin of discrepancy. This matter has not been investigated by the TIO’s office either.

The TIO’s office, and Senator Alston, have been shown clearly that this incorrect charging, both on my 1800 line and on my fax line, continued for at least 18 months after the arbitrator handed down my ‘award’. Since neither Telstra nor the arbitrator ever addressed this issue during my arbitration, then I have never been awarded anything in relation to this particular matter, even though the Commonwealth Ombudsman’s information helped me prove, beyond any doubt, that there were considerable problems with Telstra’s billing system as much as 20 months AFTER my ‘award’ had been handed down. Obviously this means that the problem continued right through the arbitration itself.

How could the arbitrator hand down an ‘award’ when it was clear that incorrect charging, one of the main reasons I was in arbitration in the first place, was still occurring on a regular basis, and had occurred right through the time I was in arbitration? Since this incorrect charging was one of the issues raised in the arbitration, and it was never addressed or included in the ‘award’, how can this procedure be complete?

I have written numerous letters to both the TIO’s office and to Telstra about this matter but still, in December 1998, neither has offered any explanation and still the incorrect charging over the Commonwealth Ombudsman’s calls has not been addressed in any way. More on this matter later in this unbelievable story.

May 11th 1995 was D-day, the day the arbitrator was due to hand down his award. I had previously been sent a copy of the DMR/Lanes report on the technical losses attributed to the phone faults my business had suffered over the previous 6½ years which my claim covered. I had found, to my horror, that this report had only addressed 26 of the points I had raised in my claim leaving many very relevant claim documents un-addressed. In fact calculations now show that DMR/Lanes assessed less than half the claim documents I submitted. This effectively gave Telstra a major advantage since they therefore did not have to respond to the documents which were not covered in the DMR/Lanes report. The TIO has still not investigated why both the arbitrator and DMR/Lanes allowed so much of my claim material to be ignored. The information on pages 169 to 171 in Chapter 30 further supports this fact.

None of the incorrect charging issues had been addressed at all and neither had my questions about claim documents which had been lost between my fax and their intended destination. Nor had the continuing phone faults been addressed. Bile rose from my stomach. I had no money left to employ George Close again. What could I do? This was clearly an attempt to ‘wipe the slate clean’ for Telstra. Obviously the arbitrator thought he could get away with awarding me a minimum payment, without any compensation to cover all the consequential and resultant costs that had accumulated as I prepared my claim and then as I worked to bring all these matters to the attention of Austel and the Government. Senator Alston knew all along that the COT members had been verbally assured by the chairman of Austel that all these other costs would be reimbursed if we proved our claim. This agreement was never put in writing because of the concern that it would set a precedent, but it was clearly understood by all concerned. (see Chapter 14).

DMR/Lanes report found that a number of my claims were proven and, sure, they did find against Telstra on a few issues, but not anywhere near the extent of the problems which had been shown by my claim documents.

If anyone had investigated the short duration calls and asked why Telstra charged them to my account between May and August of 1993 (while the malicious call tracing equipment was connected to my phone service), it would have been quite clear that these calls had been illegally diverted somewhere else.

Even more alarming, if this issue had been investigated correctly, considering that the short duration calls continued at least until June of 1994, an even more sordid picture would have emerged: the possibility that my incoming calls were still being diverted twelve months later.

CHAPTER 28

The following fault assessments are taken from the DMR/Lanes technical report, specifically from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. The DMR/Lanes report was compiled from Telstra’s own data and records.

“2.2     There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

            ASSESSMENT - Service was less than reasonable.

2.8     RCM1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

            ASSESSMENT - Service was less than reasonable.

2.9     Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

            ASSESSMENT - Service was less than reasonable.

This report then goes on to summarise the situation regarding the gold phone:

“Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightening strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.

ASSESSMENT:    A reasonable level of service was provided.”

So, in their report, DMR/Lanes stated. at point 2.8 (above) that 4 days was a “less than reasonable” time-frame for repair of a fault but, in the summing up of this section of the report, they state that 11 days was a reasonable time-frame for repair of a fault.

Also in their summing up (above) they gave the gold phone a clean bill of health, but the gold phone was connected to RCM 1 for most of its existence so how could it possibly have been working well when the exchange (the RCM 1 referred to in point 2.2 above) “had a track record of problems”?

Bearing in mind that this report was compiled seven years after my first complaint was lodged with Telstra, isn’t it just a bit of a worry that DMR/Lanes made no reference to the many diary notes and letters from customers which I lodged with the arbitration, many referring to continual problems with this gold phone? How could they possibly prepare a secret document for the arbitrator (which I was never intended to see), giving the system a clean bill of health, with all these complaints piling up?   Mind you, it must be noted that DMR/Lanes did state that they did not assess all my claim documents when they were assessing the phone faults at Cape Bridgewater. This, of course, raises the question of why they didn’t assess all these claim documents. Who in Australia had the power to instruct an independent technical resource unit that they were not to address issues raised in claim documents which had been presented to a legal procedure? Clearly, if you have enough resources and enough power to influence the judge (in my case the arbitrator), you can hijack the system whenever you want to.

The ‘lighting strike’ referred to is another interesting item. According to FOI documents which I included in my claim, the exchange had received a lightning strike some time in November of 1992. This lightning strike apparently damaged a ‘bearer’ at the exchange. This document also reports that it ‘appeared that the fault was rectified by late January 1993’. According to my calculations, even if the ‘some time in November’ was actually late in November, this is still 2 months, not 11 days as DMR/ Lanes had stated in their findings. To have a phone out of order for two months is certainly not a reasonable level of service.

Other information that came to light while Austel was researching their COT report (see Chapter 6) shows that at one stage the Telstra technicians forgot to connect a fault alarm at the Cape Bridgewater RCM exchange. Since Cape Bridgewater was an un-manned exchange, this alarm was vital as it was the only way the technicians at Portland would know if there was a problem or a fault at the exchange. This alarm was not connected for 18 months — from August 1991 through to March 1993. Why hadn’t DMR/Lanes highlighted this error in their technical report? Obviously many of the phone faults my business experienced during these 18 months would have gone undetected by the local technicians simply because the alarm wasn’t connected.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, using Telstra’s own documentation, that there had been continuing problems with the gold phone over a period of years. These problems were supported by many letters from my customers. In December 1995, some time after receiving the DMR/Lanes report (dated 30 April 1995), I had finally had enough, and I refused to pay the gold phone account until the gold phone faults were acknowledged by Telstra. Telstra’s response was to cut the phone off. This phone remains disconnected up to the present day (December 1998), with the TIO’s office stating that they are ‘looking into the matter’. How long will it take to resolve this issue? My customers and I have already been patiently waiting for three long years.

As if it wasn’t hard enough to respond to the technical report lodged by DMR/Lanes, the financial report, prepared by FHCA, was even more of a nightmare. On 9 May 1995, my forensic accountant, Derek Ryan of D M Ryan Corporate, actually wrote a 39 page report to the arbitrator explaining the failings he had found in the financial report. Some of the points he raised in that letter were:

“1.       The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

            Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2.         We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. THE MAIN CALCULATION OF LOSS HAS BEEN CONSIDERABLY UNDERSTATED BY AN ERROR OF LOGIC.

            The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.”

D M Ryan has never received a response from the arbitrator (and, at the time of writing this, it is now December 1998). Two days after D M Ryan’s letter was sent, on 11th May 1995, the arbitrator handed down his award. Compared to D M Ryan’s calculations of the losses my business had suffered because of the phone problems, this award gave only 10c in the dollar. After I had taken into account all the expenses I accumulated just to bring the phone problems to the attention of Austel and the Senate, and all the expenses associated with submitting my claim to the arbitrator, I was left with only 4 cents in the dollar. By this stage I had been fighting for justice for 7 years and I was left to ask — what about my failing health?

I was not aware of Derek’s disgust at the handling of the arbitration procedure and, unbeknown to me, he contacted the project manager of my claim at FHCA and asked him how he had arrived at his findings. The project manager advised Derek that, under instructions from the arbitrator, he had been forced to exclude a large amount of information from his final report, meaning that the final report was actually incomplete. The two following letters, written by Derek Ryan to Senator Richard Alston, Minister for Communications and Mr John Pinnock, the new TIO, clearly show Derek’s disappointment with FHCA. He considered that their conduct was detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

If I thought I knew what stress was before this, I was certainly learning more now. The arbitrator’s award had been delivered to me by taxi from Melbourne and the effect was shattering but I had to keep going, I had customers to think about. Six days after receiving the report however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed, twitching on the floor. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. A five day stay in hospital followed and the final diagnosis was — stress.

On the first day home after the hospital stay I received a call from the FHCA project manager. He had rung, he said, to let me know that he was aware that things hadn’t turned out quite as I had hoped but he believed I now had to put it all behind me, get on with my life and show them what I could do. I am still wondering who ‘them’ was.

As if it isn’t bad enough that the so-called independent arbitrator forced the so-called independent financial assessors to ‘doctor’ their report, it is even more disappointing that the project manager for the financial assessors would wait until after my appeal time had elapsed before speaking out. And, why did he ring then anyway? I had only ever spoken to him once through this whole process and that was back on 11 October 1994, during the oral hearing. This phone call seemed totally out of character; or had he heard about my collapse and had an attack of conscience?

Even stranger, during this conversation, the project manager informed me that the executive manager of my case with DMR was also going to ring me; and so he did.

The Canadian DMR manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’ I was so stunned at this statement that ‘This sort of situation would never have happened in North America’ that I later forwarded a signed Statutory Declaration, recording my memory of this conversation, to various Government Ministers. I also wrote and faxed DMR in Canada but, three years later, I am still waiting for a response. I have not received any sort of explanation for the ‘would never have happened in North America’ comment. Could it be that, in Canada, DMR Group Canada would not have been pushed so that they didn’t correctly address a legal claim? Who knows?

What we do know however, from the letter on page 141 from the Director General of Telecommunications Policy in Canada, is that he was concerned about errors that may have been in the Bell Canada Report.

CHAPTER 29

And still the plot continued to thicken .....

On the 23rd May 1995 another 700 or so FOI discovery documents arrived. I couldn’t even begin to imagine what on earth Telstra thought they were going to achieve by this. Why now? Why not twelve months ago when I could have used the material to support my claim? Why not even ten DAYS ago — because two of the documents included in this latest batch proved to be particularly interesting and, if I had only had them ten days before I could have used them to support an appeal against the arbitrator’s award. Even better, if I had had them a month before I could have amended the claim itself. By the time I had these documents in my possession the only way I could have used them was to take the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means at the time, as Telstra well knew.

The two documents in question were copies of letters exchanged between Telstra and Bell Canada International in August and September of 1994. These letters acknowledged that the BCI tests, as reported in the addendum to their Cape Bridgewater report of 10 November 1993, were impracticable.

When, some three years later, I received yet another document (N00040) from another COT member, the deception was totally uncovered. Document N00040, dated 20 June 1994, and under the heading  “Smith Query — BCI tests to Cape Bridgewater”, is reproduced below:

Clearly Telstra was aware that something was not right with the BCI report which they had provided to the Senate in 1993, allegedly to support their assertions that their network into the Cape Bridgewater exchange was up to world standard. We now know, of course, that Telstra has continued to mislead the Senate for many years about the true standard of this network.

On the 6th September 1994, in Telstra’s letter to Mr Kealey of Bell Canada (the FOI document numbered N00005 and 6), Telstra specifically referred to the start and finish times for the tests run from the Richmond digital exchange (RCMX), from test line 03 428 8974 to the Portland exchange test line, 055 267 211. These tests were detailed in section 15.23 of the BCI report and Telstra referred to these tests as being impracticable although they did not disclose that this was partly because Telstra were themselves conducting Neat testing to the same number in Cape Bridgewater, namely 055 267 211 (the PTARS test line) at the same time on the same day.

This letter to BCI is not the only document to refer to the impracticability of these tests; a number of inter-departmental documents within Telstra also refer to this problem.

FOI document L68979 is a copy of a letter from Telstra to my arbitrator on 13 September 1994. Telstra acknowledges in this letter that the arbitrator has not given them any directions relating to the raw data from the BCI tests which I had asked the arbitrator to request from them. I asked to see this raw test data so I could prove to the arbitrator that my telephone service was so poor at the time that these tests could not possibly have been carried out as shown in the BCI report. I have not yet sighted any documentation of any sort, certainly none of the raw data has been passed to me by either the arbitrator (under the discovery process), during the arbitration, or by anyone else since. I have not received any documentation showing how BCI arrived at the figures in their report.

Even though Telstra knew that this BCI report was impracticable and flawed, they still used the BCI test results in their defence of my claims, to support their assertions that the network was working correctly. I know that at least one copy of this report was passed on to Telstra’s defence unit because it has been acknowledged in writing by a clinical psychologist, who was commissioned by Telstra to assess my mental health, that he had read the BCI report before he met me.

Of course, any ordinary person would believe that Telstra’s phone system was working properly if they read BCI’s report because BCI is an international, highly regarded and qualified communications company and because they clearly stated that thousands and thousands of test calls were made to the exchange that my phone was connected to, with a 99.5% positive result. The first conclusion would then have to be that my claims were unsubstantiated and, following this, that I must be out of my mind in some way. The fact still remains that Telstra knowingly provided a flawed document to support their defence. This is illegal in this country and is classified as perjury in a legal process. Why hasn’t Telstra been made accountable for their actions by the Government?

For years I have canvassed the Communications Minister and the TIO to have the BCI report withdrawn from Telstra’s defence. My requests seem to have fallen on deaf ears. It is clear from Telstra’s own FOI documents that, for some six months before they lodged their defence, they knew that this report was impracticable. The TIO and the various Government Ministers who have been notified of the problems with this report have so far failed in their Duty of Care — they should have ensured that this report was withdrawn from the Public Domain when they were first alerted to the impracticability of it and the flaws it contained. As it stood then, and still stands now (because I don’t have the finances to continue the fight), there is no way I can take my case to the Supreme Court although, in 1998, Ann Garms did just that. At the time of writing she has lost the first round but is now waiting on an appeal being heard. Her court costs are so far in excess of $350,000. It seems that Australian justice can be painfully expensive.

In a letter to the Commonwealth Ombudsman, Telstra has written:

“The reference to documents relating to Mr Smith being lost or destroyed refers to a discussion I had with Mr Smith. Apparently Telstra had previously informed Mr Smith that specific documents had been lost or destroyed. I am not aware of the circumstances in which this occurred and will arrange for my staff to ascertain the details from Mr Smith and advise you of the circumstances.”

Telstra’s Commercial General Manager for Victoria and Tasmania has added a hand-written note to another document, asking, in relation to one of my FOI requests:

“Should we make Alan pay, even if we can’t provide everything he wants? Please prepare the letter as suggested.”

Does this note indicate that Telstra were acting in good faith at all times? I think not. Imagine even contemplating taking my money for something they knew they could not possibly supply!

CHAPTER 30

At this stage the daily running of the camp was almost beyond me and my partner, Cathy, was handling the work almost entirely on her own. My self-esteem continued to sink lower and all the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, I couldn’t even think straight any more, let alone compose advertisements or talk to people about the camp.

Again and again I found myself stewing on my situation. How could this happen in Australia in the 1990’s? Wasn’t this supposed to be a democracy? How could the Liberal Coalition Government continue to ignore me? How could the lawyers get away with hiding the truth in order to prop Telstra up? I couldn’t work out which way to turn next.

Finally I decided to ask for all my claim documents to be returned to me (this was covered in the rules of the arbitration). I waited patiently for weeks before deciding to drive to Melbourne and collect them myself. I thought I had been as angry as it was possible to be but no, by the time Cathy and I arrived in Melbourne I was ready to explode. I controlled my anger though, as I walked into the arbitrator’s reception area and spoke to the arbitrator’s secretary, Caroline. Looking back now I wonder why I expected to have my request met this time: certainly none of my previous requests had been met but I suppose we can always hope. It was not to be however. My documents were not ready, Caroline informed me, and the arbitrator was not available.

My emotions, already on a short fuse, finally took over and I shouted at Caroline, demanding that she get my documents at once and reminding her that I had put in my request three months before and had now driven for five hours to collect them. “I am not leaving this office without those documents.” I told her, “Call the police if you want to, I don’t care. You have my property and I want it back now.” At last a young lad appeared from the lifts wheeling a trolley loaded with boxes of documents. He asked me to sort out which were my claim documents; I simply took the lot.

It took Cathy some time to find a parking spot near this busy city office but finally I loaded them into the car and we headed off, unaware that, among my own documents, there were some that I had never seen before. These proved to be documents that should have been forwarded to me under the rules of arbitration. And they were very, very interesting, to say the least.

Of course, in any dispute which is settled by an umpire (like an arbitration) it is almost mandatory that any information supplied by one party must be automatically circulated to the other party and this was certainly so according to the rules of my arbitration. In fact, in my case, the information had to also be supplied to the TIO’s legal counsel. Among the documents I took with me from the arbitrator’s office this day, however, I found a brown envelope full of documents and loose papers, none of which had ever been forwarded to me. This envelope contained copies of a number of letters from Telstra to the arbitrator, including one letter dated 16 December 1994, which indicated that it had been sent with three attachments:

1.Letter dated 4 October 1994 from Austel to Telstra

2.Letter dated 11 November 1994 from Telstra to Austel

3.Letter dated 1 December 1994 from Austel to Telstra

In the first paragraph of this 16 December letter, Telstra stated:

“You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.”

Clearly, at that time anyway, Austel were most concerned regarding this incorrect charging and, on page two, Telstra go on to state:

“The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.”

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? Certainly I did not receive any correspondence from him which referred to this arrangement but Austel apparently later wrote to the arbitrator acknowledging receipt of Telstra’s letter of 11 November 1994 and noting that Telstra had agreed to answer, in their defence of my claims, each of the questions put by Austel on 4 October 1994.

In their earlier letter of 1 December, Austel had indicted that a number of other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services and so it is not surprising to find them indicating their concern about this in their letter of 8 December:

“A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.”

In direct breach of the rules of the arbitration, the arbitrator did not forward these letters on to me during the arbitration.

Even more amazing, the arbitrator made no written finding in his award regarding the massive incorrect charging as shown in my claim documents. In fact, even though Telstra had notified both the arbitrator and Austel (in their letter of 11 November 1994) that they would address these incorrect charging issues in their defence, they failed to do so, and even though the arbitrator obviously knew of this promise, the arbitrator still allowed Telstra to ignore the issue completely. I believe that this constitutes a conspiracy between the arbitrator and Telstra in my arbitration but I was to uncover even more when I turned to the loose documents I had come by inadvertently. These would surely convince the devil himself that there was a conspiracy afoot. These documents relate back to the day the COT four signed for arbitration, on 21 April 1994.

As I have already explained, one of the main reasons for signing for arbitration, as opposed to the existing commercial agreement, was that Telstra’s billing system would be brought under scrutiny. The members of COT believed this was a major issue which needed to be brought to the attention of all Telstra’s customers, in the public interest.

I had been directed, you will recall, to lodge written details of any phone complaints with Telstra’s solicitors. In particular, in one of my letters to the solicitors I had shown them that I was being charged incorrectly for short duration calls on my 008 account.

On 18 June 1993, Austel wrote to Telstra regarding these billing issues. Their letter, one of many written by Austel to Telstra regarding this particular issue, follows on the next page.

On the same issue, in an internal Telstra letter dated 25 November 1993, to the Corporate Billing Directorate in Brisbane, regarding my short duration call problems, the writer states.

“Telstra does have clearly defined policies and principles for call charging and billing.

Customers will be charged only for calls which are answered

Unanswered calls are not charged

Unanswered calls include calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which ‘ring out’ or are terminated before or during ringing.”

When speaking with John MacMahon, the General Manager for Consumer Affairs at Telstra, I referred to this document, telling him that this was certainly not the case on my phone line.

Over the years leading up to my arbitration, I continually proved to Austel that Telstra were incorrectly charging RVA calls. In one instance I used my claim advisor as just one example, and provided my 008 account and Telstra’s matching data records to prove my point. Finally, because these issues were not addressed in my arbitration, Austel visited Cape Bridgewater late in 1995 to look at a further 6 bound volumes of new evidence I had accumulated to support my case. Three of these volumes, which had been submitted into arbitration, had resulted in Telstra writing to Austel on 11/11/94 to say they would address these issues in their defence.

The Austel people looked over the six volumes I had and commented that they had never seen so much evidence, presented in such detail. They appeared to actually be quite stunned. Finally they left, taking the volumes of evidence with them. Although all this evidence was returned to me some weeks later I have never had any formal recognition of my effort from Austel.

In a letter dated 6 December 1995, Austel wrote to me:

“I refer to my recent correspondence advising you that Austel had again written to Telstra regarding the issues relating to charging discrepancies concerning its 008/1800 service originally raised by you in 1994. I write to request additional information from you to assist Austel in its investigation of charging discrepancies associated with Telstra’s 008/1800 service.

Your assistance in this matter would be appreciated.”

Among the ‘loose documents’ inadvertently provided to me by Caroline I found three technical reports which had been compiled from my claim documents. One, dated 7 April 1995, was headed “Draft for Discussion Purposes Only” and written by Lanes Telecommunications; the other two documents were duplicate copies of a report compiled by DMR and Lanes and dated 30 April 1995. Or were they duplicates? They certainly looked the same; they certainly both had identical covers; they certainly both had the same date and neither of them was signed, but .... ?

Back in May of 1995, when I received my copy of this DMR/Lanes report, and needed to respond to it in writing according to the rules of the FTAP, I had asked why it had not been signed off as a complete document. The arbitrator did not respond to my question. When I found these ‘duplicates’ of the DMR/Lanes report, I dug out my copy and compared all three. Lo and behold, a number of differences showed up, all in Telstra’s favour.

Some of these differences were not apparent at first glance but one was quite clear from the start: the page numbering on one of the 40 page documents which I had not seen before sailed along sensibly up to page 27 but after that, with the exception of a page numbered 31, all the rest of the pages were also numbered 27. What on earth did this indicate? I had no idea. And there were other differences, the most alarming relating to a part of the report headed “Scope of Report” in the early draft version, dated 7 April 1995 (documents 1 and 2). Part of this section states:

“The report covers incidents and events potentially affecting the telephone service provided to the Cape Bridgewater Holiday Camp during the period February 1988 to August 1994.

SOURCE OF INFORMATION

The information provided in this report has been derived and interpreted from the following documents.”

As you can see on the following pages, the documents listed in the draft version as being sourced by Lanes are also listed in the arbitrator’s copy of DMR/Lanes final report. In my copy of the final report however, half way down the list, all the items arrowed have been added. All these additional items were my claim documents; none of them were Telstra’s documents. Apparently someone was trying to make me believe they had looked at every document I submitted but the body of the report clearly proves that DMR/Lanes didn’t assess all the documents I submitted.

On examination of these three versions of the same document the following differences become apparent:

My report listed 27 documents marked with dots, plus 7 other documents marked with dashes. These 7 items actually total 2158 separate pages; the draft report, and the arbitrator’s final version only listed 18 documents in all

The documents listed in my report are in a different order to the draft report

My report is not stamped as a draft copy

My report does not have the “Scope of Report” paragraph indicating that DMR/Lanes only assessed documents up to August 1994

According to the draft report, DMR/Lanes did not even look at any documents I submitted after August 1994 even though many of the faults I included in my claim continued to plague my business long after August 1994. In fact, even on the day the arbitrator handed down his award, 9 months later, I was still battling phone faults.

The difference in numbers of documents assessed before August 1994 indicates that not all my claim documents were passed to DMR/Lanes for evaluation. How could they possibly have correctly assessed all the faults prior to August 1994 if they only saw half my claim? I wondered, was this a conspiracy, this apparent attempt to cover up on behalf of Telstra and defraud me of a proper assessment?

The next lot of documents have also been taken from two different copies of the final report, one of which was sent to me (dated 30 April 1995). The other was given to me by the arbitrator’s secretary; apparently this was the arbitrator’s copy (also dated 30 April 1995).

The first problem with these documents occurs on the page numbered as 1 in my version and titled “Resource Unit Technical Evaluation Report. Mr Alan Smith.   CBHC. 30 April 1995.” The second paragraph on this page consists of only one short sentence “It is complete and final as it is.” The second paragraph on the equivalent page of the arbitrator’s report (numbered as page 2), however, goes on to say “There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.”

Note that again, there is more information in the arbitrator’s version than there is in my version. And, again, this refers to billing problems.

Again, in the arbitrator’s copy (on the page numbered as 3), the fourth and fifth paragraphs state:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

Otherwise, the Technical Report on Cape Bridgewater is complete.”

This information is simply missing from my version of the report (page numbered as 2). Did the arbitrator and DMR/Lanes all think that I would forget about the billing issues if they didn’t remind me?

It was serious enough to discover that Telstra had not addressed the billing issues, even though they said they would; it is even more serious to discover that letters discussing this matter had been sent by Telstra to the arbitrator and to Austel without being copied on to me. If, as it seemed to me, the arbitrator actually had favoured Telstra so that this billing issue would never be addressed in my arbitration, then we must ask if the arbitrator was as impartial as he was supposed to be. All this greatly disadvantaged me, as a claimant in this matter. And then, to finally find that the technical resource team (DMR/Lanes) intended to address the billing issues but mysteriously omitted this from the final version of their report just proves my allegations that there was a conspiracy between various high-ranking people involved in this arbitration.

I returned again to the documents on pages 175 and 176, under the heading “Cape Bridgewater Documentation”, and found, in the second line on both pages, reference to more than 4,000 pages of documents which had been presented by both parties and “examined by us”. In the arbitrator’s ‘award’, however, he states that he viewed more than 6,000 documents. What happened to the other 2,000?

Let’s assume, generously, that there were, say, 400 pages of documents (out of the arbitrator’s 6,000) which were only related to the financial side of the dispute, and which would therefore not need to be assessed by the technical team. This still leaves 1,600 not accounted for. Interestingly, this is approximately the number of claim documents referred to by DMR/Lanes (in their two source information documents) as not being assessed. Could this mean that DMR/Lanes didn’t see all my claim documents?

On the last two lines of this same paragraph I found the following amazing statement:

“A comprehensive log of Mr Smith’s complaints does not appear to exist.”

This is further proof that the technical team were not provided with my list of 183 logged faults from late 1989 to early 1994. Apparently they were not provided with a copy of the further 43 logged faults which I submitted or the 70 or so letters of complaint which I also provided to support these two lists, totalling 226 logged calls in all.

Looking back now it seems obvious that there was some sort of conspiracy going on here, a conspiracy to cover up at least some of the issues I had raised in my claim. I have evidence which supports my claims that Telstra ‘bugged’ my phone both before and during my arbitration and when this information is put together with what I now believe was happening with all the incorrectly charged short duration calls on my 1800 account, a conspiracy seems the only answer. Diversion of phone calls and faxes has been explained in more detail on page 52.

Back in early 1993, as I have previously related, I was continuing to lodge complaints with Austel about the short duration and non-connected calls. An FOI document dated 23 September 1993, from Don Pinel of Telstra to Jim Holmes, Telstra’s Corporate Secretary, discusses ‘long held’ and ‘incoming unanswered’ calls of ‘4 - 8 seconds’. According to this document there was some suspicion that these were ‘diverted’ calls. Pinel commented that further investigation was to take place.

The following three incidents all relate to other situations where call diversion was highly likely to be the cause of the problem:

A hairdresser in the outer suburbs of Adelaide, South Australia, who is known to the COT group, suspected that some of her incoming business calls were being diverted elsewhere. Her problem was investigated by both Austel and the police and the conclusion was that it seemed the calls were actually going to another hairdresser. The matter was addressed by Telstra out of court.

A massage parlour operator in Melbourne who also contacted COT was another who suspected some of her incoming business calls were being diverted to her opposition. Her suspicions were later confirmed, after police intervention. Her calls were apparently being diverted to another massage parlour elsewhere in Melbourne.

In my own case, on 3 June 1994, during my arbitration procedure, I called Telstra’s fault service to lodge a complaint in response to problems experienced earlier that day by some of my customers who had difficulty getting through to my business on the phone. At the time I had a bus charter operator in my office who witnessed the following events.

I used my fax phone to phone Telstra. This equipment is on a separate line to my 008/1800 free call service which was the line I was complaining about.   I asked the Telstra 1100 fault operator if she would phone my free call number and see if she had problems getting through. Moments later, while I was still holding on the fax line, there was a faint, one ring burst on my free call line. Both the charter operator and I heard this short ring but when I picked the receiver, the line was dead and so I didn’t bother to speak but simply hung up the phone. The bus charter operator has since confirmed this in a letter which was presented to the arbitrator.

A few moments after I had hung up the free call phone the Telstra operator came back to my fax phone and quite innocently announced that she had heard some-one say something about a holiday camp on the free call line. I certainly didn’t say anything about a holiday camp, so who answered the call? The operator’s version of events certainly doesn’t match my version, nor does it match the description given by the witness, so where was her call answered? Later I had my own version of the events professionally video taped and this five minute video clip was accepted into arbitration, along with other documentation supporting my claims of illegal call diversion by persons with access to Telstra’s network. FOI documentation shows that all this information was passed on to Telstra by the arbitrator but, like so many of the issues I raised in my claim, the issue of illegal call diversion was never addressed by the arbitrator.

Further information relating to this illegal phone interception and to phone bugging, lost faxes and intrusion into the private lives of COT members, is detailed at the end of this book. You will be astonished at what the Telstra Corporation has resorted to in their efforts to conceal the truth. Withholding important discovery documents in an arbitration procedure is unlawful, if these documents exist. Tampering with evidence in an arbitration (e.g. pouring beer into a phone) is unlawful. Relying on defence documents which are known to be flawed, in an arbitration, is unlawful. Phone tapping of conversations without a warrant is unlawful. Someone within Telstra must have authorised this criminal conduct. Does this indicate that organised crime exists within Telstra?

CHAPTER 31

I wondered how much more confusion and deception I would uncover among the rest of the documents inadvertently supplied by the arbitrator’s secretary.

The unethical behaviour by the FHCA project manager, when he withdrew a large section of his financial report, was firmly fixed in my mind when I uncovered a document headed “Ferrier Hodgson Corporate Advisory Working Notes.” As I read this document I pictured yet another spear aimed at my heart. Had these people set out to drive me into the ground?

The following information, from page 15 of the FHCA draft report, appears to find in my favour for once. It shows the following list of tourists visiting the Portland region between 1991 and 1994:

In 1991/92 this list shows 1,396,000 tourists, in 1992/93 this increased by 6.7% to 1,490,000 and in 1993/94 the number increased again, this time by 5%, to 1,565,000. This was the increase which I had shown in my claim documents, supported by figures supplied by the Department of Conservation and the Environment (now called Victorian Parks) who control many tourist locations and national parks in our area. These figures were also supported by information supplied by the Victorian Tourism Domestic Monitor.

In his award document however, when the arbitrator referred to tourism, he stated that he ‘had to take into account the decrease in tourism’ in my area as possibly one of the factors contributing to lost business at the camp.

The figures supplied by FHCA, Parks Victoria and the domestic tourism monitor for the Great Ocean Road region are factual figures. What made the arbitrator decide that there had been a decrease in tourism in the area?

Now, with all this information finally available to me, I set about challenging the arbitrator through the Institute of Arbitrator’s president who, because he happened to live in Western Australia, thereby caused me to spend more money on faxes and phone calls in my search for natural justice. My impression, gained from letters from the Institute’s president, was that he was alarmed at the evidence I passed to him; evidence showing the unethical way my arbitrator had conducted himself. At the time however, I was still suffering from sleepless nights as I stewed on the questions — how could a legal person such as the arbitrator hide so much evidence? How could he allow Telstra to get away with ignoring so many issues? And why? All this deception and yet it seemed no-one with any power seemed at all concerned.

One person who was expressing concern however was my local Federal Member of Parliament, David Hawker. As far back as 1992 Mr Hawker had supported me by writing to Telstra expressing his concern about the RVA and other phone faults I was experiencing and the business I was losing as a result of these faults. The General Manager of Telstra’s Australian Commercial division responded to Mr Hawker on 23 August 1993, saying:

“Mr Smith has had ongoing complaints and service difficulties over some five years. His services were initially provided from an exchange of older technology which had some faults and suffered congestion.”

My own problems with the phone service were not the only problems I spoke to Mr Hawker about; I had also alerted him to other Telstra customers in our area who were telling me they were also having problems with the phone service, not only when trying to contact me, but with their own phones as well.

So concerned was Mr Hawker that, late in 1995, before the Liberal Government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra. Senator Alston seemed to be quite concerned about the way my arbitration had been conducted.

According to my record of this meeting, Senator Alston asked for further documents. He was interested in my claims regarding the unethical conduct by various parties associated with the administration of my arbitration; he was also interested in my references to the way Telstra had ignored my claims of incorrect charging and problems with billing. My claims that Telstra had been listening in to my private phone calls during the arbitration seemed to particularly worry Senator Alston. It also seemed that, when we signed for arbitration, Senator Alston had been under the same illusions as the COT four — he believed that the arbitration would be a non-legalistic and fast-tracked process. Another Senator who had supported us along the way, Senator Ron Boswell, the National Party Leader, had expressed the same beliefs.

During this period immediately following the handing down of my arbitration ‘award’, Senator Alston appeared to also be very concerned that FOI discovery documents had not only showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, but that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the Public Domain. Telstra were, in fact, using this flawed report to publicly support their assertions regarding the high quality of their telephone network. One example of this public use of the report was the Channel Nine program “A Current Affair”.

Following a request from Senator Alston’s office I sent them more documents showing that Telstra technicians had been listening to my private calls during the arbitration process. Senator Alston’s office showed even more concern when they discovered, again through my FOI discovery documents, that Telstra continued to listen to my private phone calls for months after they had reassured the Australian Federal Police, and David Hoare, Chairman of the Board of Telstra, that they had ceased that practice. As a once-practising lawyer, Senator Alston was well aware of the implications of Telstra’s behaviour; he could clearly see what an advantage they would have when preparing their briefs and defending my claims if they had inside knowledge gained by listening to their opponent’s phone calls to his claim advisers.

How easy it is for someone with the right contacts to uncover inside information. My movements were monitored by the very corporation I was doing legal battle with and some of my important claim documents simply vanished while being faxed. How useful it must have been for Telstra to know where I was and when. And how useful it could have been if they were also able to check what information I was lodging with the arbitrator and make the most damaging simply disappear before it got to him.

In December 1994 I received FOI documents R11612 to R13587 which included questions for the Senate Estimates Committee put on notice by Senator Alston, to be answered by Telstra. Under the heading “To Telstra From Senator Alston”, document R13587 states:

“According to an ex-Telstra employee who had responsibility for security and file management in the period from 1987 until 1992, Telstra installed some computer links between its billing computers — a database system containing customer details, and computers in other organisations, ie Australia Post.”

This document then asks the following questions (among others):

“1.       Could you name each and every organisation which is linked to Telstra’s billing computer?

2.         Does ASIS (refer Appendix 8 & Glossary) have access to personal files kept by Telstra?

3.         Can each and every one of these organisations access Telstra’s files containing billing details?

5.         Could you guarantee that no Parliamentarians, who have had dealings with “COT” members, have had their phone conversations bugged or taped by Telstra?

9.         Who authorised this taping of “COT” members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10.       On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11.       (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

            (B) Of these, how may were customers who had compensation claims, including ex-Telstra employees, against Telstra?

25.       An internal Telstra minute in relation to Alan Smith of Cape Bridgewater states: “Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a recorded voice announcement saying the number is disconnected. They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to the AXE.”

This document, and questions asked of Telstra in the Senate by Senator Alston, make it quite clear that Senator Alston was then, and still is, aware that Telstra taped and listened in to private phone calls made by COT members who still fear that their calls are being listened to. Anyone who had access to the many, many documents I have read over the years I have been battling for justice would have the same fears.

After the Coalition Government’s victory in 1996 Senator Alston became the Hon Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate bound volume of attachments, each document indexed to support the information in the 82 page listing. A copy of this 2 volume report was sent to Senator Alston and another copy was forwarded to the Commonwealth Ombudsman’s office.

This report has since been assessed by a number of Legal experts, and others; some of the written responses follow.

Since Senator Alston was appointed to a position which gives him the power to instigate a full inquiry into the many issues raised by the Telstra / COT situation, nothing more has happened except for a letter of acknowledgement dated 4 September 1996. Even though I had alerted Senator’s staff to problems I had with the TIO, particularly in regard to his blatant disregard for the truth when he was addressing my concerns, this acknowledgement letter asked how the Senator might acquire a progress report from the TIO.

CHAPTER 32

In Chapter 23 I related the ‘beer in the phone’ story. This issue was raised for me again, on 28 November 1995, six months after my award had been handed down and almost 12 months after I had first asked the arbitrator to access, from Telstra’s defence unit, the actual T200 phone that Telstra had taken from my office for testing. This was the phone that Telstra later alleged, in their defence, had been affected by ‘beer in the phone’ which caused what Telstra called a ‘lock-up fault’. According to Telstra, this meant that the fault with my fax line was not in the network but in the phone. As I have indicated in Chapter 23, the arbitrator would not allow my forensic document researcher to see the draft of the T200 technical report. If this had been allowed my researcher would then have been able to ascertain how Telstra’s technical unit had conjured up this ‘phoney’ report.

So, when I received another bundle of late discovery documents from Telstra, imagine my surprise to find, included in this bundle, Telstra laboratory reports which showed that, while Telstra had my T200 fax/phone at their laboratory for testing, they also carried out tests to see how long beer would stay wet if it was inside the phone casing. The remarks on the report of this particular test show that, when left overnight, the beer was either almost dry the next day, or completely dry the next day. Apparently Telstra laboratory staff had satisfied themselves that beer could not have stayed wet and sticky for 12 days (the time between the phone leaving my premises and it arriving at the laboratory). Would a corporation as large and powerful as Telstra really stoop so low as to fake the ‘beer in the phone’ set-up just to defend the quality of their network?

Of course, I didn’t see this document until 6 months after the arbitrator had handed down his award but still I was incredibly excited to be proved right. I came across this information about 8 o’clock one evening and, in the heat of the moment I grabbed the phone and dialled the number for the arbitrator’s home. His wife answered and told me that he was overseas and was not due home for few days. I thought quickly. “Probably the arbitrator would have discussed at least some aspects of my arbitration with his wife,” I thought. “If I tell her who I am she may be afraid that I am trying to cause trouble. I don’t want to risk upsetting her unnecessarily, so I’ll give someone else’s name.” I quickly decided that I should use a name that would be familiar to the arbitrator; someone that he was friendly with. The first name that popped into my mind was that of the FHCA project manager.

According to my telephone account, this call was made at 8.02 pm on 28/11/95 and it lasted a mere 28 seconds.

Later, after I had calmed down a bit, I told the TIO about my exciting find; a document that I had been looking for, for so long; a document which finally proved my innocence regarding the ‘beer in the phone’ matter. I asked the TIO what he would do with this information, after all, he was the official administrator of the arbitration and this Telstra document showed that not only did Telstra use the flawed BCI report in their defence, but now we could prove that they also used a fabricated T200 report as well. This of course was a very serious matter. Tampering with evidence in a legal arbitration is a chargeable offence.

I also freely told the TIO that I had tried to contact the arbitrator to pass on this news, explaining that I had rung at 8 pm on the night of the 28th because I had only then just uncovered the laboratory documents which I was convinced proved serious unlawful behaviour: someone must have introduced the ‘beer’ into my phone after it was taken from my office. Surely tampering with defence material was a matter that needed to be looked into at once. I explained to the TIO that the arbitrator had been overseas when I rang and I explained also why I gave Mrs Hughes the FHCA project manager’s name instead of my own, so as not to alarm her.

The TIO’s response was a flat statement that my arbitration had run its course and he did not intend to involve his office in any further investigation. He added that my best option was to go to the Supreme Court of Victoria (as if I had the resources to do that!).

This incident is one which added to my concerns about the TIO because some time later I received a letter from the President of the Institute of Arbitrators (Aust), Mr Laurie James, with a copy attached of a letter Mr James had received from the TIO. Apparently, after I had spoken to the TIO about my attempt to reach the arbitrator at his home, the TIO wrote to Mr James, relating an entirely different version of the story. In his letter to Mr James, the TIO stated that I had rung the arbitrator’s home at 2 o’clock in the morning (he also noted that I had used a false name, which I don’t deny). This letter from the TIO could well have been interpreted as questioning my motives. Although the TIO didn’t actually ask the question, it did infer that there was a question as to why would anyone make a phone call at 2 am, except in an emergency (and this wasn’t an emergency really) or if the caller was trying to be intimidating. The TIO was well aware of how badly I had been treated by the justice system and yet still he seemed to be trying to blacken my name. Why else would he take a perfectly innocent incident and try to turn it into something sordid?

Furthermore, what gave the TIO the right to write this letter in the first place? The TIO is supposed to be unbiased: how could he sit down to write this letter knowing that he is about to record a completely different story to the truth? He must have known that his correspondence would bring my character into question. If he was prepared to do this in my arbitration, it also raises questions about his behaviour in the arbitrations which are still going on for other members of the COT group. Who is he actually supporting here, the Australian public or the telecommunications carriers?

Another interesting question raised by this letter to Laurie James: the TIO forwarded a copy to the arbitrator at the time. Surely the arbitrator would automatically check with his wife for her version of the incident? And, if he did, I believe that his wife would agree that I rang at 8 pm and not 2 am, and I also believe she would say that I was perfectly polite. Why has the arbitrator not come forward with the true facts?

At least Mr James was giving me the opportunity to defend myself to him. And I did, and, because the TIO’s letter had also been copied to the arbitrator I believed that he would also confirm that I had spoken quite politely to his wife when I rang, and I also believed that he would also confirm that I rang at 8 o’clock at night, not 2 in the morning as the TIO had stated.

If we return to pages 131 and 132 in Chapter 23 you can see that I have proved, beyond all reasonable doubt, that someone within Telstra tampered with my Exicom T200 touchphone after it left my office to be examined at Telstra’s laboratories. The TIO should have taken this into consideration before he wrote to Mr James. It is even more alarming, as I have also explained on pages 131 and 132, to discover that Telstra was once again prepared to sign a Statutory Declaration covering the authenticity of their report regarding ‘beer’ in my phone when they knew the report was unlawfully constructed. On pages 208 and 209, and also in Appendix 5, I show that one of Telstra’s technicians also knowingly signed a false Statutory Declaration in Telstra’s defence, in relation to my Mitsubishi fax machine. In this Statutory Declaration the technician blames ‘customer operator error’ for the continuing faults experienced with this equipment, even though he was well aware that the faults were actually network related.

FOI Document D01026, in Appendix 9, directly relates to the Exicom T200 touchphone problem. This document shows that not only were Telstra clearly aware of moisture problems associated with this brand of phone but they were also aware that the moisture problem created a short duration/incorrect charging fault to occur on their customer’s accounts. These were the very same short duration/incorrect charging faults that both my arbitrator and Telstra conveniently chose not to address in my arbitration, even though Telstra advised Austel (11/11/94) that they would address both problems as part of their defence of my arbitration claims.

Even more disturbing, from document D01026 it seems that Telstra re-deployed the phones they knew were faulty and returned them back into service to other unsuspecting customers. It would be interesting to ask Telstra who in their employ had the meteorological expertise to decide where these moisture prone phones should be sent. Cape Bridgewater, as one example, is a known moisture prone area and, as a result of my continual complaints, the RCM exchange at Cape Bridgewater was finally sealed so that moisture wouldn’t affect the copper components etc. inside this un-manned exchange.

If Telstra does in fact have a meteorological wizard on their staff who was deciding where these faulty phones would be best sent, I wonder if it occurred to him to contemplate that atmosphere inside the buildings where these phones were being installed. I can imagine there would be a considerable moisture content in the air in, for instance, a fish and chip shop, a bakery, an industrial kitchen, a restaurant or a heated swimming pool etc. The humidity in all these places would be higher than other locations in the same geographical area. I also wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers and how many of these customers have been continually incorrectly charged for calls they did not receive -- as I was for so long.

Another interesting point for discussion is the legality of the re-distribution of products known to be faulty. Regardless of how the Australian Trade Practices Act looks at such a situation, according to point 1 of FOI document D01026, Telstra decided that their faulty phones would ‘still have to be deployed in areas of lower moisture risk.’ It seems that the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia as well as being exempt from a number of Acts of Parliament (or so it seems).

It also seems that Telstra, their agents and their employees are exempt from being charged for carrying out illegal activities in Australia and I certainly hope that no Australian business executives expect to be protected from Telstra’s thuggery by our Government: they certainly haven’t protected me, or a number of my associates.

CHAPTER 33

When the TIO and his legal counsel first began to pressure the COT four into abandoning the commercial process, the FTSP, and signing for arbitration, the FTPA, no-one bothered to tell us that the appointed arbitrator was not qualified (graded) by the Institute of Arbitrators. This meant that, technically, he was not fully qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This was just another part of the comedy of errors that we had become caught up in.

In 1996 the President of the Institute wrote to me, confirming our belief that the appointment of a non-graded arbitrator was ‘always a risk’. To add insult to the injury of this situation, I was later informed that the arbitrator, while involved with the COT cases, actually sat, and failed, his grading examination which, if he had passed, would have seen him admitted into the Institute’s register as a Graded Arbitrator.

This information was all passed to Senator Alston and the TIO as it came to light and yet, still, no-one has been able to explain why such an un-graded arbitrator was chosen to oversee such a vast process.

So, the arbitrator was not fully qualified, but at least, we thought, we always had the TIO to fall back on and the TIO was an unbiased observer in this process. Well, once again, we discovered (too late to help me) that we were wrong. The TIO’s office is supervised by a board and the members of the board are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra. In fact the very person in charge of authorising the supply of discovery documents to the members of COT under FOI, is also the Telstra representative on the council of the TIO’s office.

This has been a highly legalistic arbitration, which has so far cost Telstra more than 18 million dollars to defend. What chance did the COT’s have when we had to rely on Telstra documents to support our claims and the person in charge of distribution of those documents also sat on the council of the TIO? This gave Telstra private access to the TIO himself, without the need to include COT members. No wonder we felt so hopeless.

As more and more documents arrived I found it harder and harder to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, particularly in relation to the ‘beer in the phone’ episode but also in relation to other incidents. Why, I wondered, did the arbitrator not make any finding regarding lost faxes, both before and during the arbitration process? These lost faxes included valuable evidence but they had somehow been lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and by Telstra’s defence unit. These two episodes became the focus for me and the driving force behind my persistence in trying to uncover the truth: I still couldn’t understand why the arbitrator had apparently not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol in the fax/phone. Wasn’t it obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth; the truth that Telstra’s lines were causing the problems?

The only way any of the members of COT could prove their cases was by using documents buried in Telstra’s archives; how likely were we to get our hands on them?

During question time at a Senate meeting on the environment, recreation, communications and the arts, on the 24 June 1997, Telstra were asked a number of questions regarding their involvement in the supply of discovery documents to the COTs, under the FOI Act. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s defective administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. Obviously the repercussions of this defective supply of documentation had severely disadvantaged me when I was preparing my claim. Months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Among all these documents I often found particular items that would have been most useful in supporting the information in my claim. By then, of course, they were of no use any more.

The public record of Parliamentary proceedings, ‘Hansard’, shows that, at the meeting on 27 June 1997, a Telstra whistle-blower, Mr Lindsey White, made a number of interesting statements to the Senate, including a report relating to the group he worked with while assessing the COT FOI documents. According to Mr White, this group was originally housed in the same building as Telstra’s solicitors. He said that, in the early days of his involvement, there were four technical specialists and about six people from Deloitte’s (Telstra’s accountants) helping the Telstra team. The documents that were finally forwarded on to the COT members all travelled through this process first, he told the Senate.

According to the Hansard report of this question time, the following exchange then took place:

“Senator O’Chee, National Party, asked Mr White — “So Telstra had masses of documents relating to each of these cases. Your job in this team was to interpret those documents and explain to — what lawyers — what those documents meant?”

Mr White replied — “They were committed to an Excel file. My job was to determine what the documents were, who they were from, who they were to, what value they were. They were put on an ‘Excel’ file and that was put on the Telstra mainframe system. The legal people used them; Deloitte’s took what they wanted out of it, I would imagine. What happened to them after I had deciphered them, I do not know.”

Senator O’Chee then asked — “Are you aware of any of those listings, those explanations of the FOI documents, ever being made available to the complainants?” To which Mr White responded — “It was not part of my responsibilities.”

Certainly, in the time leading up to my arbitration, or during the arbitration itself, I never received any copies of any Excel file lists associated with my FOI claim documents. These documents were not forwarded to me until TWO AND A HALF YEARS AFTER the arbitrator had brought down his findings.

Still the TIO and Senator Alston continue to cover up the unethical way in which the COT arbitrations were handled.

But, back to the Senate debate on 24 June 1997. The Shadow Minister for Communications, Senator Chris Schacht, raised the question of the $18 million that Telstra had paid out in legal fees during the COT arbitrations. In relation to the $1.74 million that the COT claimants had collectively received so far, he asked Graeme Ward, Telstra’s Group Director - Regulator of External Affairs,

“The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.”

Senator Schacht later added:

“Yes, but you went through a process of hanging people out to dry for a long time.”

After this statement from Senator Schacht, Senator Carr, Labor, commented to Mr Ward:

“Is it not the case in regard to the particular matters I raised regarding Alan Smith, that your own advice in documents that I have seen — they purport to be from the DMR Group Inc, Lanes Telecommunications Ltd, dated 30 April, I think it is their document, I am not altogether certain so please do not let me misrepresent the matter. But I have a document here, headed up “TELSTRA SECRET”, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?”

This question was answered by Telstra’s Ted Benjamin who had been in charge of the COT arbitrations and who, as mentioned previously, was also a member of the counsel to the TIO’s office. Mr Benjamin replied:

“There were negotiations held with Mr Smith before the matter went into arbitration. We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.”

Mr Benjamin, however, was one of the people who, back on 1 October 1993, had received a high priority e-mail, later to become FOI document A04483, from Greg Newbold, also of Telstra. This e-mail related to an article which was due to be printed in the Melbourne Age Newspaper on the following day. The e-mail stated, in part:

“ Ben Potter is to publish a story concerning Alan Smith who’s called for a public jury to hear his complaint. If we win — he shuts up! If he wins, the WFB A D Hoar resign. Potter is aware that this is just a media stunt given the extensive initiatives currently under way to resolve the COT matters.

Am currently discussing matter with J Holmes prior to responding to Ben Potter, who rang me with the news.

This will blow away or certainly diminish Mr Smith’s call for a public jury to solve his complaints.”

Mr Benjamin also received a copy of another e-mail from the same Greg Newbold (FOI A05254). This document, dated 17 November 1993, referred to a question being raised by Canberra Liaison Group regarding the “merits/demerits of holding back the Bell Canada tests — information for a ‘cleansing’ programme after the mess of the Coopers and Lybrand Report.”

It is interesting to note that at a Legislation Committee meeting in the Senate on 27 February 1998, Mr Benjamin admitted to Senator Bill O’Chee that he was aware that Telstra had falsified defence documents during another COT arbitration. It appears that, so far, very little has been done in response to this admission.

In my opinion, other similar documents show that Ted Benjamin, COT co-ordinator and supplier of our FOI discovery documents, was well aware of many of the different aspects and different issues surrounding our case. This does not seem to be the impression he gave to the Senators.

Back about the middle of 1993, with phone faults continuing to plague my business, I had asked that an independent person be appointed, perhaps by Austel or the Government, to take over my office for a period of one week. I said at the time that, if that person could survive just one week with the phones in my office without going ‘nuts’ I would be amazed but I would walk away from the whole dispute. On the other hand, I suggested, if this independent person found that my complaints to Telstra were valid then Mr Hoare, the Chairman of the Board of Telstra, should take over responsibility for seeing my case through to the end. My suggestion was not taken up.

Later we discovered that there had been a variety of problems at the Cape Bridgewater exchange which no-one was aware of, at the time. The first was that Telstra technicians had not insulated the exchange and moisture was causing some of the problems I was experiencing. The second problem was caused because the same technicians who had installed the RCM in August 1991, had also forgotten to connect the fault alarm (as discussed previously). Because the Cape Bridgewater exchange was unmanned, the technicians at Portland relied on this alarm to let them know if there were any problems. Obviously, if the alarm wasn’t connected, the technicians at Portland didn’t know of any of the faults that were occurring. Finally, heat in the unmanned exchange was creating even more problems. Much later a local technician discovered that the RCM system 1 failed when the ambient temperature reached 74ºF or 23ºC. Once this problem was discovered, a cooling fan was installed.

Mr Benjamin’s statement that Telstra had been unable to reach a final settlement with me before going to arbitration infers that I was stubbornly refusing to negotiate and that my stubbornness created the need for arbitration. In fact Austel’s General Manager for Consumer Affairs at the time, Mr John MacMahon, was well aware that I was actually pushing for a commercial assessment, and I had been pushing for this from the very beginning. The last thing the COT members ever wanted was a legal process. It is clear from many of the FOI documents I now have however, that Telstra were only interested, from the start, in forcing the COT members into a legal process, fully aware that, even if we won our cases, the cost to each of us would deliver a blow which, in the end, would mean that our group would be beaten by the enormous costs involved in mounting a legal case, while Telstra just continued to dip into the public purse.

There are still many questions waiting to be answered by Telstra. The Commonwealth Ombudsman’s office has also been attempting to extract replies from Telstra on my behalf. In one instance I asked the Commonwealth Ombudsman’s office to supply a copy of a letter from Telstra to my arbitrator on 25 January 1994 and copies of subsequent fax documents sent by the arbitrator to Telstra on 11 February 1994. In response to a request from Ms Phillipa Smith, the Commonwealth Ombudsman, Telstra wrote that they had located the documents in question in a file belonging to a past senior Telstra executive. They then forwarded the required letters on to Ms Smith. This was a small win, but it was far outweighed by the documents which were never supplied. For instance —

Early in the arbitration process I had asked, under FOI, to see documents explaining just how the rules of the arbitration had been arrived at, particularly the first draft of these rules. When Ms Smith passed this request on to Telstra she received the following reply:

“Telstra has been unable to locate Mr Black’s further general files which include copies of the correspondence received from Hunt and Hunt in relation to the development of the Fast Track Arbitration Process and I am told that these files, along with other documents, were disposed of by his personal assistant sometime after he left Telstra’s employ.”

So, it seems that everyday letters can be located but important evidence, relating to a legal process such as my arbitration, were lost forever. This missing evidence could well have proved that the so-called ‘independent’ rules which the members of COT signed, were actually not so independent after all.

Many documents mysteriously disappeared and many organisations disassociated themselves from my arbitration over the years. When I raised issues with the Institute of Arbitrators in a letter dated 18 January 1995, I was advised by the then President of the Institute that:

“The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself.”

To this day I believe that he was probably told that, but I have evidence from the TIO’s office that, in fact, at the time of the FTAP, the TIO and my arbitrator stated in writing that the then President of the Institute helped draft some of the rules of the arbitration. This man is now a County Court Judge.

This ‘non-legalistic’ arbitration was cursed with confusion and complications from the very beginning and even now no-one seems willing to explain why so many of my claim documents disappeared during the process. When I found out that the technical resource unit only assessed my phone and fax faults from February 1988 to August 1994 I became even more convinced of a conspiracy of immense proportions; a conspiracy not only involving the arbitrator, Telstra and those who administered the procedure, but also involving people higher up within Telstra, people who had the power to hide evidence. Either my faxes were being intercepted en route to the arbitrator’s office, or the arbitrator’s office was not passing them to Telstra’s defence unit so they could be addressed as part of the arbitration procedure.

It has been stated by Telstra, their lawyers and a number of independent technical experts that, between 26 May and 19 August, 1993, because the malicious call tracing equipment locked my 008 line up for ninety seconds after the completion of each successful call, no incoming call could have been answered in this ninety second time. This proves, of course, that at least some of my calls were answered somewhere other than at my business. According to Telstra’s own CCAS data at least forty separate incoming calls were diverted during this particular period, without including Telstra’s test calls. So, were my faxes, originally intended for the arbitrator’s eyes only, also ending up at this unknown location?

How many Australian businesses have lost out to aggressive and unexpected take-overs when they were in a vulnerable position? How many of these businesses were surprised by the take-over bid because they believed no-one knew their situation? How many were hijacked because someone had access to their telephone conversations?

How easy has it been to target my business, under the nose of the Government? How many legal battles in Australia have been open and shut cases with clear evidence to support a win and, at the last moment, the case is lost because the opposition has unearthed sensitive information? How much information, trusted to the Telstra network by Australian citizens and businesses, believed to be a private exchange of information between two people only, is actually being highacked via the telephone network?

As an example, in my case alone, Telstra have listed the documents they received as part of my claim in arbitration. This list is forty-three documents short of the number that I forwarded to the arbitrator to be sent on to Telstra’s lawyers. Even the most unscrupulous arbitrator in the country would not withhold this much claim material. So -- where are these documents?

Documents lost during a legal process is not a new experience for the Telstra Corporation as the founder of the Australian Internet Web site, ‘CyberJustice’ (www.cyberjustice.com.au), also found. John Tuczynski was originally the director of his own telephone salvage company, Liberty USA Pty Ltd. In 1991 Liberty began purchasing used telephone equipment from Telstra. In mid-1992 the company entered into a written agreement to purchase all Telstra’s recovered T200 telephones and, in the following years, they purchased some 400,000 of these second-hand telephones, for reconditioning and resale to overseas markets. The company became quite successful then, suddenly, the supply of the T200 phones dried up.

John Tuczynski discovered that the Telstra officer he had been dealing with had left Telstra and set up his own company in opposition to Liberty. The new bloke on the block, ex-Telstra, then somehow managed to secure rights to purchase almost all the popular T200 telephones himself. So few were left for Liberty that the business was no longer viable. Further, those few that were left were not available to Liberty at a competitive price. Telstra sold these used phones by the tonne and, according to Federal Court documents, the new bloke purchased 472,426 tonnes at a total cost of only $75,588.16. If Liberty had been able to purchase the same quantity, they would have had to pay in excess of $300,000. Quite a bit more than the $75,588.16 paid by the opposition.

Bravely, Liberty USA Pty Ltd, a small family business, believing in the Australian Justice System, decided to take the matter to the Federal Court. International observers who have since read the transcript of the court case are lost to understand what went wrong. No-one can actually explain how Telstra won the case. Even the trial judge commented that this ex-Telstra ‘new bloke on the block’ ‘has been involved in conduct which may be the subject of the infringement of some Commonwealth Law (and) Statutory provisions of a criminal nature which has been infringed.’

Telstra could apparently not locate the invoice, or any accounting records, which should have covered a $100,000:00 bank cheque from Liberty. Although a hand written ledger had been kept to record the sale of used equipment, even this pre-nineteenth century record could not account for the missing $100,000:00 bank cheque. Even the trial judge referred to the ‘surprisingly primitive accounting system for an organisation like yours.’ (ie Telstra). Naturally John agreed!

For years Liberty has repeatedly asked for an invoice for this $100,000:00 payment but it has never materialised.

Liberty’s story continues later in this book, on page 218.

In my case, even more than lost faxes, the lost incoming phone calls add up to an awful lot of lost revenue. Although some of my customers have been returning annually for more than ten years, I still can’t afford to loose forty calls in three months -- forty prospective new customers. Perhaps these people are now regularly visiting another holiday camp somewhere -- who knows? What we do know, however, is that so far the Australian Government seems powerless to tackle the ‘big brother’ of Telstra’s corporate management team.

In Chapter 34, on pages 196 and 197 you will see how much our present Government cares when a small business operator highlights the dangers of documents lost in Telstra’s network. If I was representing the Ford Motor Company, or BHP, or one of any number of other multi-national companies in Australia, I am sure these complaints would have been investigated long ago.

CHAPTER 34

My patience, already stretched past normal endurance, snapped. Where had all the documents relating to problems after August 1994 vanished to? After all, these problems continued right through to July 1998 — people were still writing to me describing faults they had encountered when attempting to send faxes to me or when I attempted to send faxes to them.

Around June 1998 I received letters from five different businesses, listing the fax problems they had encountered. These letters were all passed on to the TIO’s office. In one of these letters, from Chrissy Hawker’s Secretarial Service in Portland, Chrissy listed the problems she had encountered, including:

“blank paper coming through in the middle of transmission

a strip of approximately 3cm coming through

distorted figuration that looks like a stretching of letters appearing at the end of a page

a page with black lines all the way as described above.”

Chrissy went on to say:

“As you can appreciate, being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.”

In this letter, dated 30th July 1998, the Australian Federal Police tell me that they are unable to help in any way.

If the Federal Police can’t understand the importance of 43 faxes not reaching the arbitrator then what other avenues are left to have these matters correctly investigated? For example, if documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse and no-one will investigate.

In the next letter, dated 18 August 1998, the Attorney General notes that he “cannot be of assistance to you in this matter.”   If the Attorney General’s office is not concerned about the loss of legal documents while in transit via a fax machine, and the Federal Police can’t help either, then who can?

I believe that piracy of faxed documents may well be rife in Australia, not only documents relating directly to Telstra, but also documents associated with business in general.

On the 1st July 1998 I wrote again to the Deputy Telecommunications Industry Ombudsman, Mr Wally Rothwell, relating my concern that not only were some of my faxes being ‘lost’ in transit, but others were being disfigured and made unreadable. I copied on to him a number of documents which I had received back from the arbitrator’s office when they returned some of my claim documents to me after the arbitration had been completed. These documents were later forwarded to both the Federal Police and to the Attorney General as well as to the Minister for Justice. These were documents which had been originally faxed to the arbitrator but which had arrived in his office as only half pages or as blank pages. Even so, my Telstra fax account shows that I was still charged for sending these illegible documents. The TIO’s office still refuses to address these issues.

Bank statements which I faxed to Ferrier Hodgson arrived at their office with no detail, although still clearly bank statements. In fact, some of these mostly-blank pages have a hand written note indicating “Smith’s Bank Statements”.   I have asked the TIO to find out whose handwriting it is but, once again, I have not received a reply.

When I saw these strange faxes I asked the TIO how FHCA could possibly have assessed my financial position correctly during their assessment if some of the documents I sent them arrived minus the information they needed for their valuation. Again — no answer from FHCA.

Back on 22 April 1994 Austel had also received blank pages from my fax when I attempted to send them copies of my Telstra accounts showing massive incorrect charging. When I checked the accounts covering the 22 April it was clear that I was charged for many minutes of transmission time from Cape Bridgewater to Austel in Melbourne. Even Austel’s fax journal list registered that these blank pages took minutes to arrive. I have since tested this situation by sending blank sheets to a Melbourne address. They took only 10 to 12 seconds to go through.

One interesting aspect of these ‘blank pages’ which arrived over the years, was a small symbol in the top right hand corner of each page which I have pointed out to the Federal Police, the Attorney General and other people. On 29 June 1998 my solicitor also received 2 blank pages from my office. These two pages both had strange, square symbols, not exactly the same as the earlier ‘blank page’ symbols, but not much different either. So whatever happened to my faxes during the arbitration process seems to still be happening.

Another fax fault which I spoke about during the arbitration related to the TIO’s legal counsel who attempted to send me a copy of the arbitration rules. In this instance I was the one to receive pages that were blank, save for a smaller version of the mysterious ‘fax symbol’. By that stage I had already complained that these fax problems — the pages with only the ‘fax symbol’ — had only started to occur once I signed the original commercial process, the FTSP and that my accountants, my solicitors and various other advisors had all received these strange pages.

It is interesting to note that, after this, I didn’t see a full copy of the FTAP rules until I signed them on 21 April 1994. Could it be that my copy of the rules of the arbitration had been lost because of these fax problems? Like various Senators, I was misled by the TIO and his legal counsel. The Senators and I believed that the rules were non-legalistic and so I signed without seeking a legal opinion. Once again my trust in the TIO let me down.

A letter dated 21 June 1996 from Telstra, talks about providing copies of ‘all the FOI documents and correspondence’ which they received ‘from Dr Gordon Hughes from 1 January 1994 to 30 April 1994 and from 1 September 1994 to 31 May 1995’ regarding my FTSP and FTAP. This statement indicates that they did not provide copies of any correspondence received from the arbitrator between May and August 1994. Even though I have requested this information under FOI, Telstra insist that there are just too many documents. It is however interesting to note Telstra’s reference to ‘all the FOI documents and correspondence’ when looking at the following listing of faxes which I sent to the arbitrator. This list has been taken from my phone account and it shows that 43 more faxes left my office for the arbitrator’s office than those which Telstra say they received from the arbitrator. Where are these 43 faxes? And, why were they not addressed by Telstra in their defence of my claims? And, why were they not assessed by the resource units attached to the arbitration?

Over the years I have written more than 800 letters to a wide variety of people including the Treasurer, the Prime Minister and many others. Because I have not been able to secure help from any of these sources I had no other alternative but production of this book, thereby breaking the confidentiality agreement I was coerced into signing.

I have also written to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of all the ‘missing’ 43 claim documents, under the rules of the arbitration which Telstra and I both signed.

Some very interesting points raised in this book relate to:

1.         documents not received by the arbitrator from me during the FTAP

2.         documents not received by me from the arbitrator or the TIO’s legal counsel after the completion of my arbitration.

In relation to this, points 6 and 7.2 of the FTAP rules state:

6.           A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.

7.2         The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (“the Claim Documents”) in support of that claim.

And, at point 25, the rules state:

Return of Documents after Arbitration

25.         Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

The FTAP rules are quite clear: all the material that I submitted to the arbitrator during the procedure was to be sent on to Telstra and then to the TIO’s legal counsel (who had been appointed as the special counsel). This meant that they would have copies of everything I sent to the arbitrator whether I sent it through the mail or by fax. Telstra’s list of documents which they say they actually receive from the arbitrator did not include 43 faxes however, even though I was charged by Telstra as if these faxes had arrived at the arbitrator’s office. Telstra’s list of documents also did not include a number of bound copies of documents which I had sent through the mail.

Under the rules (point 25), I should have received back from Telstra’s defence counsel a complete copy of all my claim material (including the elusive 43 ‘missing’ faxes). So far the TIO has not instructed Telstra or their legal counsel to supply me with these ‘missing’ documents.

The only conclusion which I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place. If this is so, then it is pointless to direct them to return these documents since they haven’t got them now and they have never had them. One can only wonder why the TIO did not follow his ‘duty of care’ when administering my arbitration.

In an effort to retrieve ALL my claim documents I have contacted:

Senator Richard Alston, Minister for Communications

Senator Amanda Vanstone, Minister for Justice

The Hon. Daryl Williams, QC, Attorney General

The Hon. Peter Costello, Federal Treasurer

and, of course, the TIO.

All these people have been asked to instruct the parties involved in this process to please return my documents — ALL my documents, not just a few of them.

The TIO had a duty to act impartially: the members of COT agree that the evidence we have indicates quite strongly that he didn’t act impartially when dealing with COT issues.

According to a reliable source, both Warrick Smith and the Hon. Senator Richard Alston visited Atlanta in the United States during the Olympic Games, with their fares and accommodation paid for by Telstra. Although, in my opinion, there is nothing illegal about this, it does seem to me to raise questions about impartiality. After all, both these men were involved at a high level in a process (the COT versus Telstra issue) in which Telstra was a major player. I can’t understand why they weren’t doing everything they could to be clearly seen as totally impartial. If I had been in Warrick Smith’s shoes, or Richard Alston’s shoes, I would certainly not have accepted such a trip from Telstra: my conscience would not have allowed me to accept such a gift, knowing that the COT members had been treated so badly by Telstra in their quest for justice.

Warrick Smith, when he was the TIO, had forced the four COT’s to abandon a perfectly workable commercial assessment process (the FTSP) for an arbitration procedure which the TIO and his legal
counsel had incorrectly assured us would be non-legalistic. The administrator of the arbitration procedure (the TIO) did not carry out his duty of care to ensure that the arbitrator he commissioned was suitably qualified to preside over such a complex process as the COT arbitrations.   From the perspective of the TIO, the Minister for Communications and others involved in drawing up the procedure, this should have been seen as a disaster from the very beginning. COT members have been advised by the current TIO that the rules of the original arbitration process were drawn up by the arbitrator in consultation with the then president of the Institute of Arbitrators Australia, who is now a County Court Judge. The presidency of the Institute changes annually and it is alarming therefore for us to later be advised, first by Mr Laurie James, when he was president, that:

“The Institute of Arbitrators Australia has absolutely no connection with the arbitration between Telstra and yourself .... ”

and then later, in a letter dated 10/9/96 to be advised by another president, Mr J Muirhead, that the Institute was not asked to supply a graded arbitrator when the COT arbitrator was appointed. In his letter, Mr Muirhead goes on to say that “there is always a risk” when using an arbitrator who is not correctly graded.

Since one of the two people drawing up the rules of the arbitration was, at that very time, president of the Institute of Arbitrators, didn’t he have a duty to alert the TIO to the fact that the person selected to handle the arbitration was not sufficiently qualified to do the job correctly? Remember, the arbitrator actually sat for his exams for this qualification during the arbitration procedure, and failed!

Over the many years I have been involved in this debacle, the COT members have continually ensured that Warrick Smith, Richard Alston and Amanda Vanstone (Minister for Justice), have all been sent up-to-date information which supports our various claims. In my case, I have provided documented proof, again and again, that my arbitration was not carried out according to the principals of natural justice.

As previously mentioned, one of the many issues which have been raised with these three people relates to the completed financial report, prepared by Ferrier Hodgson Corporate Advisory. The project manager who produced this report had been appointed to assess what effect Telstra’s defective supply of service had on my financial losses but, on instructions from my arbitrator, this project manager withdrew a large section of the final report, including all the figures showing how FHCA arrived at their final assessment. Both the project manager and the arbitrator must have been aware that removal of this information would seriously disadvantage my forensic accountant in the preparation of his reply: the missing information meant that he had no way of knowing how FHCA arrived at their findings. Not only were Warrick Smith, Richard Alston and Amanda Vanstone alerted to this situation, but the issue was also raised with the Hon. Daryl Williams, QC, the Attorney General.

All these people were also alerted to the fact that this same company, FHCA, were advising the Government and also overseeing the investigation into Christopher Skase’s financial situation (at the time, Christopher Skase was a fugitive from Australian justice and living in Spain). If FHCA could be influenced to hide their calculations in my case, could they be influenced to do the same in other, larger cases? We have to wonder too, about the earlier Pyramid matter that FHCA also advised on.

Although I understand the position the FHCA project manager found himself in, I cannot condone his actions in withdrawing information from the finished report, at the request of the arbitrator. We must also seriously question FHCA’s ethics in allowing this situation to remain in place. Why didn’t they raise the matter of an arbitrator influencing the outcome of their investigation? If such a highly regarded organisation can be swayed to change a completed legal report then it leaves doubt about how often this could happen in the future (as well as how often it had happened before!).

Lost documents and changed reports have plagued my arbitration from the beginning and the Australian Broadcasting Corporation (ABC) seemed to echo my feelings in their press release of 20 September 1998, which was headed “QAI says Telstra hid report”. In this press release, the ABC go on to say:

“A prominent Australian telecommunications company has accused Telstra and the Federal Government of a cover-up for failing to make public a report on billing problems at Telstra.

QAI Australia Limited is suing Telstra for $14 million in damages, and is attempting to get a copy of the report, commissioned by Communications Minister Senator Richard Alston, through the Freedom of Information Act.

The Government has agreed to release an edited version of the report, but Telstra has appealed against this decision.

QAI’s Managing Director Jon Grunseth says it should be released.

“If the report is not material, if it has little relevance or significance, why the big secret?” Mr Grunseth said.

“What we have here in my view is something that’s akin to a fairly substantial cover-up, so if it is harmless, release it.”

On 17 June 1998 a letter arrived at my office, from Senator Alston’s office, regarding my claims that neither Telstra nor my arbitrator addressed the incorrect charging which I included in both my interim submission and in my final claim documents. The Minister’s letter stated, in part:

“The TIO is currently investigating your claims of overcharging on 1800 numbers. It is also investigating the disconnection of your gold-phone service.

The Government has no jurisdiction to intervene in matters being examined by the TIO.

The TIO scheme applies in addition to the general rights consumers of goods and services have flowing from contract law and forms of consumer protection such as under the Trade Practices Act 1974, and does not take away from those existing rights.

A complainant may elect within twenty-one days whether or not to accept the decision of the TIO. In accepting a decision, a complainant releases the member carriage service provider from all claims, actions etc. in relation to the complaint.

In the event that the complainant does not accept the decision of the TIO, he or she may elect to pursue another forum. The member is then fully released from the TIO’s decision.”

As I have said, I received this letter on 17 June 1998. At the time of writing, it is December 1998 and still I have not heard what the TIO intends to do regarding the incorrect charging on my 1800 line. I have recently been advised that the TIO sought legal advice on this matter six months ago.

Senator Alston’s office also mentioned the issue of the disconnection of my gold-phone. Telstra disconnected this phone in December 1995 and it remains disconnected up to the present day (December 1998), so I have now been waiting for three years to have this issue resolved. How much longer do the Communications Minister and the TIO expect me to wait? My customers continue to complain about not having easy access to a telephone when my office is locked for the night. Are we really living in the democratic society that our Prime Minister keeps referring to?

According to a Hansard report (page 4472), on 30 November 1995, the last Senate sitting before the Liberal-National Party Coalition won office, and therefore the last sitting before Senator Alston became the Minister for Communications, Senator Alston helped prepare a motion proposed by Senator Ron Boswell, the National Party Leader in the Senate. This motion stated:

“That the Senate calls on the Minister for Communications and the Arts to establish an independent inquiry into the behaviour of ’Telstra’ in respect of the resultant costs to COT members of the extensive prolonged and excessively legalistic arbitration process.”

This motion was not opposed in the Senate by the then Labor Government but, now that Senator Alston has the power to carry out his own motion of three years ago, there has still been no inquiry, my gold-phone still remains disconnected and the TIO is still considering his options.

In the last paragraph of the letter which I received on 17 June 1998, Senator Alston’s office states:

“The Government has no jurisdiction to intervene in matters being examined by the TIO. The Minister also wrote to Mr David Hawker MP as a result of representations you made to his office. The Minister has informed Mr Hawker that it is inappropriate for the Government to intervene in this matter, particularly while it is still under investigation by the TIO.”

and yet this same TIO wrote to Mr Hawker at about the same time, advising Mr Hawker that I had only just raised the issues of incorrect charging on my 1800 service. In response to this statement I was able to supply Mr Hawker with a copy of one of the first letters I had written to the TIO regarding incorrect charging: this letter is dated 3 September 1995. I also sent Mr Hawker copies of another ten letters which I wrote directly to the TIO, the last dated 31 October 1995 (making 11 letters to the TIO between 3 September and 31 October 1995 — all relating to incorrect charging). How the TIO could possibly think I had ‘only just’ raised this issue, in 1998, is beyond understanding — I have continued to write to him regarding this matter ever since. According to records compiled by my secretarial service, I have actually written over 120 letters to the TIO in all; most of them related to incorrect charging.

The TIO himself actually replied to some of these letters. One of his replies, dated 28 November 1995, stated:

“The resource unit have provided clarification of the reason for deletion of references to a potential addendum on possible discrepancies in your Telecom bills from the final technical report as follows.

‘At a late stage of the arbitration process, at the time of preparation of the technical evaluation report, there were discussions about billing issues which had been raised by Mr Smith. A draft of the technical evaluation report therefore included references to the billing matters, which it was thought might require further work beyond the time of issue of the report.’ ”

Later in this same letter, the TIO goes on to say:

“A second matter involved 008 calls. Again this matter was current at a late stage (April 1995) of the arbitration process. This matter concerned possible over-lap in the records of 008 calls made to Mr Smith, and for which he was billed.”

On 17 February 1998, by registered mail, I sent the TIO a 49 page bound submission detailing examples of incorrect charging issues. This submission included copies of some pages taken from the transcript of the oral hearing conducted on 11 October 1994, between Telstra, the arbitrator and myself. I reminded the TIO that a representative from his office also attended that oral hearing. Pages 92 to 94 from the transcript clearly show that my claim documents relating to Telstra’s incorrect charging were accepted into the arbitration procedure at the oral hearing, having been previously submitted in my interim claim. Pages 91 to 93 cover my explanation of the significance of the material I was submitting and, on page 94, the arbitrator is reported as stating “I don’t think we need any further examples.”

Taking all this into account, with the TIO clearly having mountains of evidence of incorrect charging in his possession at least from the day of the oral hearing, how can he state that the 008 incorrect charging matter was only ‘current at a late stage (April 1995) of the arbitration process.’?

The letter on the next page, from the TIO’s office, shows that, in relation to the incorrect charging on my 1800 line, the TIO has finally (2½ years late) asked Telstra to advise whether they “... agree that this matter was not addressed ...”  in my arbitration.

At the time of writing this, in December 1998, I have not yet received a copy of Telstra’s response to this October 1997 letter from the TIO.

According to information provided on good authority, a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent so, even though my evidence clearly shows that this has been happening for some time, it seems that Telstra will avoid facing the issue at all costs.

This just confirms for me that one cover-up followed another, again and again. It also raises questions about why the arbitrator, who was duty-bound to address ALL the issues I raised in my arbitration, did not address this particular issue.

Please read the following letter from the TIO

Other pages taken from the oral transcript have also been sent to the TIO, and to the Minister for Justice as well as the Attorney General. Pages 37 - 38 and 40 - 41 are particularly interesting. From the information in these pages it is clear that, at that time at least, the arbitrator intended to address Telstra’s unethical tapping of my phone lines, particularly in relation to their listening to my private phone calls during the arbitration procedure. On pages 31 and 32 the arbitrator is reported as confirming that, if I included my allegations of telephone bugging in my claim, then Telstra would have a right of reply. It is clear from my reply that I wanted these matters addressed as part of my claim. The transcript actually states:

“Arbitrator to Smith:          ... and again I make sure Mr Smith understands what it means — is that effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation? - -

My reply is recorded as being: “No, I will leave it in the claim because - - - -”

To which the arbitrator responds: “You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?”

My reply: “Right, Okay, yes, all right.

The arbitrator: “So you want to leave the allegation in?

My reply:  “I will leave the allegation in.”

If Telstra is allowed to get away with this (not addressing past eavesdropping on businesses) while it is Government owned, then what does the future hold for Australia once it is completely privatised, with no Government control at all? Security for Australian businesses is at risk.

In my own situation, legal documents were ‘lost’ between my fax and their intended destination and my private and business arrangements were known by Telstra a long way in advance of the actual event, even while I was in litigation with them. These issues, although raised again and again with the appropriate people, have still not been explained. How many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied off and passed to someone other than the intended recipient, thereby illegally giving information to someone who could well use it to the detriment of the other party?

An article on electronic security in the Melbourne Age newspaper of 10 October 1998 reported that it is currently possible for anyone with access to the network to monitor faxes as they are sent and to keep copies, without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra has the ability to access all calls, though this is supposed to be under strict controls. The Age article went on to ask questions in relation to this apparent easy access to our personal and private information: What could someone use this information for? What if it is misinterpreted? Where might this information end up?

How can the Government privatise an organisation which has run vicious and vindictive campaigns against a group of their own customers simply because those customers took up their right to challenge the service they were being provided with? Before the Bill to sell off the rest of Telstra is passed, this question needs further investigation by the Senate as a matter of priority.

If, when I first raised the issue of my faulty phone services, everyone involved had abided by the rules of natural justice, I would have reluctantly accepted the arbitrator’s award but, because I discovered that the arbitrator himself had breached not only the rules of natural justice, but also the rules of the arbitration procedure itself, I couldn’t just walk away. If I had not seen the documents inadvertently given to me by the arbitrator’s secretary, and understood what these documents proved in relation to the unjust handling of my case, I would probably have reluctantly accepted the award the arbitrator handed down. If Telstra officials had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award — if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have reluctantly accepted the award.

The lost faxes in particular raise a number of questions, not the least being — since many of the missing faxes were actually my claim material, and they therefore never reached the arbitrator, how could he arrive at a fair decision without the information contained in those important claim documents?

Many questions remain unanswered for the members of COT.

Why didn’t the TIO check the credentials of the appointed arbitrator to determine that he had the qualifications necessary to run such a complex arbitration, i.e. that he was a graded arbitrator, acknowledged by the Institute of Arbitrators as the person best suited to run such a complex case?

Why didn’t the president of the Institute of Arbitrators alert the TIO to the elected arbitrator’s lack of appropriate qualifications?

Why didn’t the TIO’s legal counsel, who were supposed to advise the TIO on legal matters, advise the TIO that the appointed arbitrator was not sufficiently qualified?

Why did the Institute of Arbitrators, in their letter of 19/1/96, deny that the Institute had any connection with the arbitration?

As it happened, neither the rules of natural justice nor the rules of the arbitration procedure were abided by and, after the arbitration had been ‘completed’ I was inadvertently allowed to see sensitive documents which were apparently hidden from me during the arbitration. If the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence then his integrity would not need to be questioned because it would be clear that he wasn’t being influenced by Telstra. Again, this didn’t happen and so another question is raised:

Was the arbitrator unduly and illegally influenced and therefore no longer an independent adjudicator in my arbitration?

All Australian citizens have a duty of care to expose unlawful conduct if that conduct could be detrimental to the welfare of other Australians. I may have once been a ‘Pommy’ but now I consider myself a ‘true blue Aussie’ and I have spent many years trying to expose the fiasco I found myself caught up in because I believe the law should be observed at all costs. Without a democratic society we would no longer have the freedom we currently take for granted; a freedom so many young Australians have gone to war to preserve. The law is in place as a protection for all Australians, not just those politicians and corporate lawyers who choose to manipulate the system for their own benefit, often to the detriment of other Australians, as this story has demonstrated.

On page 28 of his award, under the heading ‘Faults Caused By Claimant’, the arbitrator appears to have based at least part of his award on a belief that Telstra’s defence documents were based on fact. He says:

“(c)      Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)        In this regard I have noted for example, the Statutory Declaration by (name no. 1 deleted)*, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted that statement by (name no. 2 deleted)*, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.”

* These names have been deleted by the author to protect individual Telstra employees. The author and other COT claimants believe that a number of Telstra employees were pressured by the Telstra Corporation into giving false statements in support of Telstra’s defence.

The following statements, taken from Telstra’s own archival material, completely contradict the Statutory Declaration made by the first technical officer mentioned in point (d) above.

1.         From an early fault report dated 5/3/93:

“Rang Cape Bridgewater but Mr Smith was out, his assistant stated she had received several calls where on lift off all she heard was dial tone, this is after we shifted 267 267 and 267 230 into system 3 in the RCM. I believe this may be tied up with the Portland AXE Network problem.”

2.         FOI document K00960, dated 31/1/94, in relation to my fax line 055 267 230, further states:

“Fax tests to Cape Bridgewater needed as Telstra’s Steve Black had problems faxing Smith Telstra information.”

3.         And again, FOI document R37914, dated 19/3/94, also in relation to my fax line, states:

“Found fault to be in RCM at the Cape Bridgewater. Common equipment card due to data corruption.”

Appendix 5, at the end of this book, shows that both the engineer the memo was addressed to, and the National Facsimile Support Centre, had experienced fax problems themselves, when attempting to send faxes to my business. Further FOI documents (K03752 & 7), currently being held in a safe place, show the actual pages and half-pages received by the writer of this memo from the addressee on 28/10/93.

Evidence provided earlier in this book clearly indicates that the faults experienced by these two Telstra people continued to plague my business right through my arbitration (1994/5) and up to at least July/August 1998. As I have explained earlier, during 1994 I alerted both the Minister for Communications and Austel that I was having problems sending faxes during my arbitration. It still seems however, from statements in his ‘award’, that the arbitrator accepted that the Telstra technical officer no. 1 (in point (d) above) had presented the arbitration with a true and factual Statutory Declaration and that my fax faults were therefore ‘attributable to operator error’.  Obviously the technical officer has committed an unlawful act of perjury in a legal arbitration process

I wonder if the TIO has still not investigated my fax problems because he believed this perjured information, even though the problems with my fax line were still being experienced long after my arbitration was completed? It seems clear to me that he too believed there were no problems with my fax, simply because the technical officer’s Statutory Declaration suggested that I was the problem, not Telstra.

It is interesting to remember here that the TIO Board is made up of representatives from a number of Telecommunications carriers, including Telstra, Optus, Vodaphone, Primus and AAPT (among others). Since the TIO’s office acted as administrator to my arbitration and should therefore have been aware of the unlawful way in which this procedure was conducted, they should have convened their own investigations into the serious matters raised by any false statements or Statutory Declarations which were provided to my arbitrator. All this information was supplied to the TIO Board and their lawyers in August/September 1999. So now we wait to see what might or might not happen next.

It seems to me that some of the issues around the COT arbitrations have also been deliberately covered up by the Australian Government so they would not have to be correctly investigated before the partial sale of Telstra. My evidence proved conclusively that Telstra continually incorrectly charged me on all three of my service lines over a prolonged period. This is against the Australian Trade Practices Act. If this incorrect charging was occurring on my phone lines, how many other lines had the same problem? Surely then the Australian Government should have notified the share-buying Australian public that it appeared that at least some of Telstra’s profits had come from incorrect charging of their customers?

I believe that the Minister for Communications had a duty of care to:

launch his own investigation into the incorrect charging issue because he was aware that neither the arbitrator nor Telstra had investigated the issue properly, and

issue a statement, in the share prospectus, explaining that some of the revenue reported in that prospectus had been accumulated from incorrect charging practices.

This story, and the documents included in this book, certainly seem to indicate that my arbitrator was not totally impartial. By not addressing the incorrect charging, the short duration calls (which probably indicate call diversion) or the phone bugging, the arbitrator favoured Telstra to my detriment.

If all this happened to me, and it certainly did, who else could it happen to? Could it happen to you too? And, if Telstra can do this, how many other large, powerful corporations are wielding the same sort of power over small business and individuals alike?

It should be remembered that COT members are not only fighting for justice in their own individual cases, they are also fighting for the rights of the Australian public — we are all being ‘ripped off’ by Telstra as long as they are allowed to continue to send out incorrect telephone accounts.

Questions must be asked about the number of alarming connections which seem to exist between Telstra’s lawyers and some high profile politicians. It is also interesting to note that I have alerted the President of the Liberal Party, who is also the Chairperson of the Counsel of the TIO’s office, to this alarming situation, but had no response. Surely these people must be aware by now of the conspiracy and cover-up that has taken place here? Certainly most of them have been given plenty of information; information which should prompt them to dig deeper.

This book has not only been written to alert the public to the treatment meted out to the members of COT, it has also been written to raise the issue of the cover-up carried out by legal vultures and large corporations and, hopefully, to stop such a situation ever arising in Australia again.

When I look back over the years since my arbitration ‘award’ was handed down I recall many moments when I contemplated giving up the fight for justice but how could I when the ‘award’ had left out so much? How could I when the arbitrator stated in the ‘award’ that tourism numbers in my region had dropped over the period of my claim, even though the actual statistics available show an increase? How could I when this down-grading of tourism numbers effected the final ‘award’ which was less than ten cents in the dollar against the amount my accountant calculated I had lost? How could I when the chairman of Austel had guaranteed that consequential losses would be included in any awards made, and this did not happen? How could I after all the financial expenditure involved in preparing my case for arbitration and all the business I had lost, firstly because of the faulty phone system and then because of all the time I had to devote to the case? How could I when I had been forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister? And how could I when I recalled all the issues which had not been correctly addressed, issues which impact on all Telstra’s customers, not just on me?

On the twenty-sixth of February, 1999, I sent three faxes to another COT member, Graham Schorer: the first and third of these faxes arrived at Graham’s office as intended but the second has never arrived. Graham’s fax journal, on the following page, covers the time span during which I sent these faxes from my fax machine and shows the two faxes which were received, marked with an arrow.

My Telstra account for my fax line, below, also covers the time span during which I sent these faxes.

Graham’s fax line number, 03 9287 7001, appears quite clearly on my phone bill. Obviously, according to Telstra, I sent these faxes to the right number and so I was duly charged for the long-distance transmission of them. Comparison of my fax account to Graham’s fax journal confirms that Graham received the fax I sent at approximately 10:53 and the fax that I sent at approximately 1:35 (this appears on Graham’s journal as 13:35) but the document sent from my fax at 11:20 did not arrive at Graham’s fax.

If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we would probably never have discovered that it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on many more occasions.

Back on the twenty-third of May, 1994, I sent seven faxes to my arbitrator. According to a signed document later supplied under FOI by a Telstra senior executive, Telstra acknowledges that these seven faxes did not reach the arbitrator’s office because, according to the arbitrator’s secretary, their fax line was engaged at the times I sent my faxes. After receiving this signed document I asked for Telstra’s technical CCAS data print-out for this particular day and, lo and behold, these seven faxes appear as having arrived at the arbitrator’s office. And, you guessed it, my Telstra account shows that I was charged for these faxes as if they arrived at their intended destination, just as I was charged for the fax I attempted to send to Graham Schorer, four and a half years later on the twenty-sixth of February, 1999.

On page 199 I have related the story of forty-three faxes which ‘went missing’ over the months during which I was lodging my claim with the arbitrator. The seven missing faxes mentioned above are included in this total of forty-three. When I examined Telstra’s defence unit’s list of documents which they received from the arbitrator, it was clear that they had not received any of these forty-three faxed claim documents and yet Telstra has charged me for all of them, some lasting for up to eight minutes (long-distance). The length of transmission time indicates that many pages were being sent.

Two important questions must be asked, in relation to these episodes of vanishing faxes:

1.Where are these forty-three documents?

2.Are they in the same place as the recent fax which didn’t reach Graham Schorer?

If you are still not convinced that something strange is afoot here, either a serious fault in Telstra’s network or some under-handed skulduggery, then I have yet another story to add to this list. Back in March of 1996 my secretarial agency in Melbourne phoned to discuss a document that had been faxed to me earlier in the day. My fax journal for this period shows quite clearly that the fax did not arrive at my office and yet the Telstra account for the agency shows that it did arrive. They were charged for a long-distance transmission lasting four minutes and twenty-five seconds.

We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes, never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

As you are aware, having read this far, neither Telstra nor the arbitrator addressed the incorrect charging on my 1800 line and my fax line, nor did they address the problems associated with my gold phone and it’s later disconnection. Now we see that at least some of these problems continue right up to the present day and yet they have still not been addressed by Telstra or the elusive Telecommunications Industry Ombudsman.

Over the years I have attempted to raise these issues with the Australian Government in a variety of different ways. There are a number of politicians and senators who have the power to call for an investigation into the matters I have raised: I have written to them all, including:

The Hon. John Howard, Prime Minister

The Hon. Peter Costello, Federal Treasurer

The Hon. Daryl Williams, Attorney General

Senator Richard Alston, Minister for Communications

Senator Amanda Vanstone, Minister for Justice

Senator Ian Campbell, Parliamentary Secretary to the Minister for Communications

Senator Geoff Prosser, Minister for Small Business

Mr David Hawker MP, Federal Member for Wannon

Mr John Pinnock, Telecommunications Industry Ombudsman

Mr Wally Rothwell, Deputy Telecommunications Industry Ombudsman

Professor Alan Fels, Australian Competition and Consumer Commission.

Despite numerous pleas to each of these people, none of them have succeeded in getting Telstra to account for their incorrect charging or for faxes that don’t arrive at their destination. In August of 1998 I forwarded on to the Telecommunications Industry Ombudsman’s office, copies of letters from four different professional organisations, each detailing their experiences of faults related to my fax line over the years following the ‘completion’ of my arbitration. Some of these letters refer to incidents as far back as 1994 or as recent as August 1998 and each organisation states that, although they send and receive many faxes, mine is the only one to give them so much trouble.

Early in 1998 Telstra sent two officers to meet with me. My accountant/business adviser was present at this meeting to take the minutes and observe the process. These two executives made it quite clear that they were then negotiating with the TIO’s office regarding a proposed assessment of the incorrect charging issues I had raised. During this meeting I showed the Telstra people a fax that had arrived on my machine from the Crown Casino in Melbourne. This fax was obviously not intended for me and it was one of many I was to receive over the following months, all from within the Crown Casino complex. Finally I complained to the TIO in July 1998 and, although the TIO’s office never responded to my complaint, these faxes from the casino stopped coming. I have never been able to understand how these faxes, originating from the casino, reached my fax machine. Not one of them was addressed to a fax number remotely like mine; they were not even in a similar range. In fact, most of the numbers the faxes were intended for were four hundred and fifty kilometres away.

After the meeting with the two Telstra officers I waited for some sort of resolution of the faults I had raised but nothing happened until October 1998. At this stage of the proceedings I had been paying only part of my fax account in an effort to highlight the problems which had not been addressed. Even though the account for this fax line was still in dispute, Telstra disconnected the line. I continued to pay off the account although this meant I was paying off the rental for a service that no longer exists. The final payment was made on 20 March, 1999, six months after the line was disconnected. This means that, since October 1998, I have been forced to move most of my office duties to my residence in order to connect my fax machine to a working phone line. My faxes are now all sent from my residence and although some faults continue to occur, there are not nearly as many as I had suffered prior to July 1998. On the twenty-eighth of January, 1999, I sent a fax to a business associate some distance away. My Telstra fax account shows charges for two fax calls to his number on this date, one at 08:23 p.m, lasting for forty seconds, and a second call at 08:24 p.m, lasting for three minutes and thirty-one seconds. According to my fax journal, the first call was not answered — so why was I charged for this call? Remember, these are all long-distance, timed calls, not a single twenty-five cent local call charge. And then, according to my associate, the second fax never arrived — so where is it?

If you are still thinking that all these examples of missing faxes could be simply glitches in the system, and of little importance, there are even more astounding and as yet unexplained events. On the nineteenth of March, 1999, my secretarial agency in Melbourne sent a six page fax to my office. My fax machine doesn’t cut off each page, so a multi-paged fax comes off the machine as one long strip of paper. As I watched this fax roll off the machine, it began to ring as if a new call was coming in, even though the line was fully engaged at the time. The fax from the secretarial agency stopped and a two-page fax from my solicitor, also in Melbourne, followed on. While I stood gaping in surprise the phone rang again. The fax from my solicitor ended and the final three pages from the secretarial agency rolled out of the machine — all in one continuous strip: three pages from one address, two pages from a second, totally unrelated address, another three pages from the first address.

And so we arrive at the question on the cover of the book: are your faxes also being lost or intercepted? Who knows? What we do know is that the technology exists to divert calls from one phone (or fax) to another and what we must now ask is — how is that technology being used?

On page 168 I discuss short-duration calls (lasting only a few seconds) which I had complained about for many years. As reported there, Telstra wrote to Austel back on the eleventh of November 1994, stating that they would address these short-duration calls as part of their defence of my claims. Of course this didn’t happen and the short-duration call issue remains unresolved. Another can of worms is opened in regard to short-duration calls by a Telstra document (FOI number A03610) which states that Telstra believed that some of these calls were being diverted. Let me assure you now, I certainly did not have a call diverter on any of my lines back in 1994, not even to divert calls to Telstra’s message bank — I have my own answering machine. So, if these calls were being diverted, where were they being diverted to? Who arranged for them to be diverted? And why were they being diverted? Again, I don’t have the answers.

What I do know is that I am not the only Telstra customer suffering from this ‘phantom diverter’ problem. The members of COT have provided the Victoria Police and Telstra with the name of another Telstra customer who contacted our group some time ago. It has been proved, and Telstra has acknowledged, that some of this customer’s business calls were being diverted to her competitor. Again the question must be asked: how many other customers suffer from unrecognised interference with their phone calls and faxes? Why haven’t the Telecommunications Industry Ombudsman or the Federal Police investigated any of these issues? How long is the Minister for Communications going to continue to ignore these issues? Telstra’s enormous profits continue to grow and Telstra shareholders continue to reap the benefit which is a good thing — unless, of course, these profits come from faulty billing procedures and ‘ripped off’ customers.

Telstra have recently sent another disconnection notice for my office fax line, the one that was disconnected some time ago. How they plan to disconnect an already disconnected line is quite a puzzle but even more of a puzzle — the latest account for this disconnected line includes a charge for $60 rental to take the account up to June 1999!

COT members only recently discovered the TIO and Telstra met in private, without a representative of the COT group, during the planning stages of our arbitration. What they actually discussed at this secret meeting may never be uncovered, however this same lawyer later informed me that the rules of my arbitration had been specially drawn up so that the process would be non-legalistic. Legal experts have since stated that the COT arbitrations, far from being non-legalistic, were actually a legal minefield for anyone without a high level of legal training.

To continue the conflict of interest theme, I have also recently learned that the arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. Again no COT representatives were notified of this meeting either. In lay terms, this is similar to the presiding judge meeting in his chambers with the defendant in a court case, and the defendant’s lawyers, without the opposite party or accuser.

This secret meeting raises many questions:

Will we ever know what was discussed at this meeting?

Did my arbitrator tell Telstra that he would not address the short duration call issue?

Did my arbitrator tell Telstra that he would not address the incorrect charging on my 008 number?

Did the arbitrator agree with Telstra that he would only allow the claimants a limited time to prepare their claims? (In my case I was only allowed six weeks although Telstra had eight months to respond instead of the agreed one month)

Did the arbitrator agree not to provide discovery documents sought by the claimants? (In my case, even though the arbitrator did not supply documents I asked for, I had to spend my own money to prepare responses to Telstra’s requests for further particulars -- Telstra, of course, could dip in to the public purse to pay their bills.)

CHAPTER 35

As you have read through this long and complicated story I have sometimes asked that you re-visit earlier chapters in order to refresh your memory on particular details; now I ask you, once more, to turn back to pages 193 and 194 where I relate the details of the John Tuczynski story. John, you will recall, ran a business called Liberty USA Pty Ltd. He was another small business person caught up in the ‘Big Brother Syndrome’ of Telstra’s dealings.

John could not believe the result of his eminently winnable case against Telstra. To add to his distress, John and his wife are convinced that losing this unlosable battle may well have contributed to his father-in-law’s death. John decided to look for another way to secure justice ... and “CyberJustice, The People’s Court” was born. This Internet site details the way a number of Australian citizens have been treated by our justice system. Evidence from more who have suffered continues to roll in as I write. I have also drafted a movie script of the COT saga.

Although my battle has raised many different justice issues, I believe the invasion of my privacy is the probably the most devastating. An Australian journalist with a number of manuscripts to his credit has also commented on the privacy issues raised in my story. He says they are the most damning he has read and he agrees that the Telstra officers who have been prepared to infringe on the civil liberties of Australian citizens must be made accountable for their actions and for the heartache and damage those actions have caused.

One small result of the pressure I have put on Telstra to treat their customers in a more civilised manner, was an invitation, on 22 March 1995, during my arbitration, to visit Parliament House in Canberra, together with three other members of COT -- Ann Garms, Graham Schorer and one other (who wishes to remain anonymous -- I will call him Mr X). The Government of the day at the time appeared to be seriously concerned about the privacy issues which had been raised by COT members, particularly the evidence of illegal voice monitoring and phone bugging by Telstra. We were invited to participate in a Senate debate regarding an amendment to a proposed re-writing of the Telecommunications Laws Act. At this debate I tabled most of the information now included in this book. The four of us also met separately with individual Senators. One of these Senators in particular appeared to be totally disgusted at the information we placed before him.

During the Senate debate itself, our Mr X detailed the problems he had experienced in dealing with Telstra. Mr X lived in the country at the time and worked as a telephone counsellor: he produced proof that these intensely private and confidential telephone discussions had been listened to at his country telephone exchange.

Even after all of this though, the members of COT are concerned that nothing has changed and so, on 28 August 1999, I wrote again to my local Member of Parliament (MP), detailing stories that I strongly believe should be told before the full sale of Telstra. A number of these stories relate, unbelievably, to Telstra’s use of the Mental Health Act in their dealings with customers who complain about Telstra’ services.

During our battles with Telstra, we learned that various Telstra officials were referring to some COT members as being of ‘unsound mind’. Recently a number of other instances of similar situations have been brought to my attention. One of the documents which I forwarded to my MP on 28/8/99 was a copy of a letter dated 9/8/99, addressed to a current Senator, from a practising lawyer who had grave concerns regarding two of her clients: a lady from Queensland and a man from country Victoria. The man is the person previously referred to as Mr X. Both these people have claims against Telstra, similar to the COT claims and they have both given permission for their stories to be told (anonymously) in this book and the movie script. The details supplied by their lawyer to the Senator include the fact that both these people have been the subject of warrants issued by the Telstra Corporation under the Mental Health Acts of Queensland and Victoria. In her letter, the lawyer asks the Senator if the present Government has taken steps to see that the relevant States revoke such authority and if not, whether the Government believes it appropriate for the Telstra Corporation to exercise such authority. In my letter to my MP I asked the same questions.

All Australians should now be asking if Telstra still have this same power and will they continue to have this power once Telstra has been privatised or will they have even more power, once they are outside Government control?

Another of the many issues COT members have with Telstra relates to one of the original COT members. This man once owned a successful, telephone dependant pizza parlour. His business had, in fact, become so successful that he decided to expand his advertising into the ‘Dial A Pizza’ area. Just as he launched this advertising campaign, many callers to his business began to complain of problems getting through on the phone. I understand that, at the time, Telstra suggested that his telephone was the cause of some of his phone faults. The telephone under discussion was a model called T200.

In appendix 9 you will find a copy of FOI document D01026, a document discussing possible faults with 450,000 Exicom T200 telephones. As you can see from this document, because the faults with these phones were believed to be caused by high humidity, Telstra deployed the phones to areas where they believed there was minimal humidity. COT members are now wondering if our pizza parlour owner was a victim of one of these re-deployed T200 telephones? His shop may have been in a designated ‘low-humidity’ area geographically, but what about the humidity levels INSIDE the shop? I imagine the heat and humidity generated by pizza ovens could well have created the very conditions known to cause problems with these phones.

Are you surprised to find that, along with the two clients whose lawyer is now querying the Senate, our pizza parlour owner was also the victim of Telstra’s rampant imagination with suggestions that he may be insane? His experience of Telstra’s ‘mental health’ syndrome occurred one day while he was driving, with his children in the car. He was pulled over by the police for not wearing his seat belt and provided his driver’s licence as requested. Almost immediately he was ordered out of the car. He was saved from arrest only because he had been pre-warned of the possibility of Telstra issuing a mental health order against him and so he was carrying a certificate attesting to his sanity.

As it happens, after many years of struggling in the legal arena, with hundreds of thousands of dollars of debt accruing, finally the Australian Senate intervened in the pizza parlour versus Telstra case. The result? The once proud pizza parlour owner, now quite ill as a result of all the worry and stress, has finally been awarded a substantial out-of-court settlement, to be paid by the Telstra Corporation, under the watchful eye of the Senate. Could this possibly suggest that he had never had any mental problems but was simply demoralised and distracted as a result of Telstra’s attempts to discredit him?

During my own arbitration, as I have mentioned on page 162, Telstra’s defence lawyers commissioned a high profile clinical forensic psychologist to travel from Melbourne to assess my mental state. Before he saw me, Telstra’s defence unit provided this man with a number of reports and other documents to help him evaluate information regarding my allegations that Telstra had not provided me with a phone service up to network standard. I have since been able to gain access to this information myself and it is quite clear that, before these reports were passed to the psychologist, at least some of the information had already been acknowledged, by a member of Telstra’s defence team, to be flawed and impracticable. Even so, the material was still provided to the psychologist and he was not alerted to the flaws in the documents.

The Australian Senate must now ask Telstra’s Board and Telstra’s senior executives:

Did Telstra also provide flawed or faulty information to the Mental Health authorities in Queensland and Victoria when they applied for warrants against the two latest ‘victims’?

Have there been any other cases where Telstra has exercised authority under the Mental Health Act anywhere in Australia?

Have any Australian citizens actually been committed in to care as a result of Telstra issuing such warrants?

Are any Australian citizens still institutionalised as a result of the issuing of such warrants by Telstra?

Surely this outrageous behaviour by an Australian corporation must have us all asking questions about our own safety. Could you be the next person to be institutionalised by Telstra? How much longer will Telstra be allowed to get away with this behaviour? How many more defenceless businesses will go under before Telstra is finally brought to account for their activities?

CHAPTER 36

An earlier draft of this book, before the addition of the final chapters, has been sent to all seventy-six Australian Senators in an attempt to highlight Telstra’s unlawful conduct. In response, Senator Kim Carr wrote (refer prologue) to express his concern about the information contained in this manuscript, and a number of other Senators have expressed concern directly to the media, particularly regarding the privatisation of Telstra. Perhaps it was ‘Ring For Justice’ that alerted them to some of the problems that still exist with the Telstra corporation.

Prior to publication of this book, a copy of this final chapter (Chapter 36) was sent, in full, to the Australian Prime Minister, in an attempt to alert him to my concerns. It seems however that the Prime Minister’s office in not concerned about proof that Telstra customers cannot trust their telephone lines, even when (or perhaps particularly when) they are involved in legal proceedings.

Perhaps the worst infringement on our rights as Australian citizens is occurring, I believe, as a result of Telstra officers who are illegally accessing the intricate telecommunications security network system which is located on the thirty-seventh floor of Telstra House in Exhibition Street, Melbourne. This area is so vital to Australia’s security that I have been loathe to raise this issue anywhere else in this book. The fact that I have resorted to detailing these security infringements here indicates that all other attempts to have my concerns addressed by the current Government, including the Prime Minister’s Department, have failed. My hope is that this exposure of the problems surrounding Floor 37 will eventually bring these illegal activities to a halt.

After I forwarded copies of ‘Ring For Justice’ to all the Senators, at a personal cost of more than thirteen hundred dollars, I was contacted by a number of ex-Telstra employees who somehow managed to acquire a copy of the book. Some of these people have complained primarily about termination pay entitlements being incorrect; others have been so incensed at what they have read that they have forwarded material, too sensitive to include in this book, which supports all that I have detailed here. One person related the following story of Floor 37, in front of a witness.

We were interested to hear that many Telstra employees refer to Telstra House as ‘Bullshit House’ but, aside from this amusing comment, the story of Floor 37 should give rise to grave concerns.

According to this informant, there is tight security in place on Floor 37 because, secreted below a false floor, there is an intricate network of communication equipment which allows direct access to every telephone line in the country, including lines used by Telstra’s opposition -- Optus, Vodaphone, Primus, AAPT etc. Apparently this floor also has a data-base room which monitors customer information. Naturally the security level is therefore required to be extremely high. In fact, if the system is working correctly, only very high level Telstra executives have access to the area. It seems, however, that the system is not working correctly.

The existence of floor 37 in Telstra House can easily be checked: what actually takes place on that floor is not quite so easily uncovered. The existence of all this equipment in one central location however, could well explain some of the problems suffered by various members of COT throughout Australia. Back on page 104 of this book you will find a copy of a letter to Mr Steve Black of Telecom / Telstra, from John MacMahon, General Manager, Consumer Affairs, Austel. In this letter Mr MacMahon acknowledges receipt of nine audio tapes from Telecom / Telstra and notes that these tapes have been passed on to the Australian Federal Police. The letter makes it quite clear that these nine tapes related to the ‘taping of the telephone services of COT Cases.’ No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian States in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a resolution process which had been put in place for the COT members. What we don’t know is the ‘how’ of the process, or the ‘where’. Could this taping have been carried out by Telstra officers who gained illegal access to Floor 37?

This book has already shown the haphazard way in which Telstra’s officers conduct the affairs of the company and it is therefore quite frightening to ponder on who will have control of Floor 37 and all the intricate network equipment it houses if Telstra is no longer under Government control. If Telstra executives have been allowed to get away with the behaviour we have so far uncovered, while the company was Government owned, how much worse will the situation become if there is no Government control and no accountability to the Australian public?

Now that the Australian Government is pushing to fully privatise Telstra I believe the Prime Minister’s Office must answer the following questions:

1.Do all seventy-six Senators know how Floor 37 will operate once Telstra is fully privatised?

2.Who will be appointed to oversee the daily duties associated with Floor 37?

3.Have the Federal Police, or any other Government Agencies, been notified that Telstra officers may have used this intricate security network to Telstra’s own commercial advantage (ie by live voice monitoring of phone lines) during an Australian arbitration process?

4.If any Government agencies are aware of this illegal activity, are they also aware that any phone bugging or live voice monitoring that may have occurred must have been carried out without the knowledge or authorisation of the people whose lines were being interfered with?

5.If any Government agencies are aware of this illegal activity, have they carried out any investigation in relation to this illegal activity?

6.If investigations have been carried out, what was the outcome?

AUSTRALIAN SENATE RECORDS      -           26 SEPTEMBER 1997

On page 140 of this book I have referred to a report prepared by Bell Canada International (BCI), on behalf of Telstra. As previously noted at the end of page 140, a number of pages from Hansard Parliamentary Records were forwarded to me just as I was completing this book. Two of these pages follow here. In relation to these pages from Hansard it is also interesting to note that, at one point, Telstra were considering ‘cleansing’ this BCI report (refer page 191, FOI document A05254) and, as reported on page 140, both BCI and Telstra have admitted that the BCI report was ‘impracticable’.

On page 108 of the Hansard document (following) Mr Armstrong refers to ‘one of the COT members’ alleging that the BCI report was fabricated. I believe Mr Armstrong was referring to me at that point and he knew, at the time, that I was right: NONE of the tests included in the addendum to the BCI report could possibly have taken place to 055 267 211, the test PTARS phone, because of other testing which was also being carried out, by Telstra, on the same day and at the same time. The power of Telstra continues to amaze me. Not only did they lie to the Senate, but they have, so far, gotten away with it.

At the top of Hansard page 109 Mr Armstrong refers to ‘an apparent clash of dates ... with two sets of testing.’ He goes on to say that, as he recalls, BCI then ‘provided a letter saying that there was an error in the report.’ As it happens I have a copy of this BCI letter; I believe it is a phoney because BCI only refers to a single test being flawed but, as I have explained on page 114, none of the BCI tests could have taken place. These two Hansard pages are reproduced on the following pages.

It is interesting to note, in his first comment on Hansard’s page 108, that Senator Schacht was not only concerned about the alleged inaccuracies included in the BCI tests, but also the ‘hundreds of millions of dollars between various service providers and other telecommunications providers claiming false overbilling’ . (my emphasis)

It is also interesting to remember that two of the issues I raised during my arbitration were:

1.Telstra’s incorrect charging and

2.Evidence of serious flaws in the BCI test at Cape Bridgewater.

No-one has yet looked at the link between these two issues.

Why have the Government and the TIO’s office allowed the incorrect charging to continue? In my own case this situation continued for at least twenty-two months after the completion of my arbitration. In the end, the only way I could control the incorrect charging on my 800/1800 free call line was to discontinue the service: the only alternative was to continue to suffer the incorrect billing. It would seem that the Government has very little concern for the small business sector.

At the end of Hansard’s page 109, after establishing that Mr Benjamin was both the Telstra person  ‘designated to handle the CoT cases’ and also a ‘member of the TIO council’, Senator Schacht asked Mr Benjamin if he had declared his interest in the COT cases to the TIO. On the next Hansard page (not included here), Mr Benjamin replied ‘There was no formal declaration...’.

As part of my continued search for justice I finally approached the Victoria Police and, in April 1999, I was notified that the matter had been taken up by the Major Fraud Group (see letter below). Over the months since the start of this investigation, as the Fraud Group have delved into the intricacies of my case against Telstra, I have provided them with numerous documents, including all the documents in this book. When I realised the significance of the Hansard pages I received late in August of 1999 I immediately forwarded them to the Major Fraud Group (see following letter dated 1/9/99).

As I explained in this letter to the Fraud Group, when Mr Armstrong’s comments (as reported in Hansard) are coupled with information about the flaws in the BCI report it is clear that Telstra knew that their defence of my arbitration claims were based on flawed information. You and I can see this and so can the Major Fraud Group.

Now we just have to hope that the Victoria Police Major Fraud Group are allowed to complete their investigations without interference from any Government body, Commonwealth or State. I believe these investigations will clearly support all my allegations. The results of this investigation will be announced on our CyberJustice web page as soon as they come to hand. Meanwhile, I have issued a challenge to Telstra .....

MY CHALLENGE TO TELSTRA

If Telstra is determined to stand by the comments made to the Senate on 26 September 1997 then I suggest they replicate the testing now, under identical circumstances and conditions to the tests allegedly carried out by BCI. This should include arranging for NEAT testing to occur at the same time.

If Telstra will not agree to take up this challenge, why will they not agree? Could it be that they know full well that the testing recorded by BCI in their report addendum could not have been carried out to the same PTARS 055 267 211, at the same time as the NEAT testing conducted by Telstra? Could it be that they are aware that an admission of this would mean that they would then have to admit that the BCI test results were flawed? Could it be that they are aware that an admission that these tests could not have been carried out as reported in the BCI report would mean that they would have to admit that they have misled the Senate?

Finally, as a result of my experiences laid out in this book, I believe Telstra must remain accountable to the Australian Parliament as do a number of Senators and other politicians from both sides of the Australian Government.

In ‘The Australian’ newspaper of 9/9/99, Michelle Gilchrist reported that the Federal Labor MP and Committee Vice-Chairman, David Cox, has said that ‘Telstra should be accountable to the Senate process because it was responsible for billions of dollars of publicly owned assets.’

Greg Rule reported, also on 9/9/99, that ‘The Australian Democrats Communications Spokeswoman, Senator Allison, backed Labor’s stance, saying Telstra must continue to be accountable to Parliament while it was still in majority public ownership.’

How can a corporation like Telstra be allowed to be free to do whatever they want without having to answer to anyone other than their shareholders? Would those shareholders actually care if some small-business person has lost their business somewhere in rural Australia as a result of Telstra not supplying a reliable phone service? If Telstra’s decisions ruin a few small-businesses but the value of the shareholder’s shares goes up, my bet is that the shareholders would turn a blind eye.

‘Ring For Justice’ has proved, beyond reasonable doubt, that, in my case at least, Telstra spent an enormous amount of money, in a valiant attempt to hide the inadequacies of their phone service from the public. If Telstra’s financial director has his way Telstra would only be accountable under corporate laws.

The TIO’s office is supposed to offer an unbiased investigation and resolution process for all telephone companies and their customers. According to my experience that is certainly not the case, although the TIO has told a number of Senators that he believes that my arbitration was ‘fairly run’. The TIO has also stated that my arbitration is now completed but I have to ask, how can it be complete if the phone and fax faults that drove me to arbitration in the first place continued to plague my business throughout the arbitration process itself and for at least another two years after the arbitrator had handed down his award?

Of course we cannot allow Telstra to only be accountable under corporate law!

Senator Alston wrote to my Member of Parliament on 27/2/98 and again on 29/5/98 stating that Telstra had undertaken to examine all the documentation with a view to resolving my concerns. Tom Dale, from the Minister’s office, wrote to the author on 13/2/98 stating that ‘Telstra has indicated that it is currently investigating your claim that you were overcharged on your 1800 service.’ A later letter dated 9/6/98, from the Deputy TIO stated:

‘The purpose of my intended meeting with Mr Hughes (arbitrator) is to clarify whether he did consider the 1800 issue during the arbitration.

The Ombudsman’s advice to me though is that he is only prepared to discuss or investigate the 1800 matter of overcharging.’

Both these letters were written some three years after my arbitration had been deemed to be complete. To date I have not been advised of the results (if any) of these investigations. If Telstra and the TIO had correctly investigated these short duration and incorrectly charged calls during my arbitration, they would have discovered that many of these incoming calls were being illegally diverted to an unknown location. I can only assume that I have not heard from either the TIO or Telstra regarding their findings because they would have then had to admit to the unlawful diversion of these calls. Since they still haven’t advised me of the result of their investigations, I have to assume that they DID uncover this illegal call diversion by unknown people, and they have decided to hide this fact.

Since these faults continued after the alleged finalisation of my arbitration, I have literally been forced to pay for some of the incorrectly charged calls under threat of disconnection of my phone service if I didn’t pay my on-going accounts. In fact, two of my phone lines were disconnected because the TIO would not correctly address my valid claims. I believe this is nothing short of blackmail.

Various letters, reproduced throughout this book, show that the organisations and government ministers I have approached in search of help appear to have ignored the truth. Clearly I had no other option left to me but to present the facts in this format, in an attempt to find true justice.

The Google link below shows others with more experience as Investigative journalists deal with the injustices bestowed upon the COT Cases. After reading My story - warts an all and the Google link below, you will be able to judge the validity of my claims more.

Telstra’s Acronyms & Jargon

AOMP: An Ericsson TMOS Network Management System tool for handling Operations & Maintenance functions for one or more AXE exchanges – particularly suited for use as an O&M centre for a number of rural exchanges which are spread over a large geographical area. Please note: while the AOMP has not operated in the Cape Bridgewater location Alan Smith has documented here because documents at hand have discussed this tool.

AOTC: Australian and Overseas Telecommunication Limited – former name of Telstra Corporation Limited – comprising the merged Telecom Australia and Overseas Telecommunication Corporation

ARE-11: Ericsson Analogue Crossbar Controlled Exchange. Please note: this type of exchange was operational during a period Graham Schorer had his problems.

ARF: Urban or large crossbar exchange by Ericsson

ARK: Rural or small crossbar exchange (Ericsson ) Please note: In the Casualties of Telecom (COT) report dated 13th April 1994, AUSTEL reported that the Cape Bridgewater exchange up and until the RCM was installed was an ARK, when in fact the system at Cape Bridgewater was an ‘old’ outdated RAX see below. An ARK crossbar exchange was manufactured approximately 20 years after the RAX system. Portland during the early nineties until August 1991 was an ARK which fed calls to the Cape Bridgewater RAX system.

ATUG: Australian Telecommunication User Group was operating well before the Telecommunication Industry Ombudsman (office of complaints) was formed in June 1993. ATUG was a voice for small businesses and as such paled a roll in enhancing services in the communication industry. Graham Schorer was a member of ATUG. Deputy TIO Wally Rothwell, before being appointed as Deputy TIO was Chief Executive Officer of ATUG for ten years.

AUSTEL: Australian Telecommunication Regulatory Authority. Please note: in July/August 1992, the then General Manager of AUSTEL’s Consumer Affairs, Amanda Davis, became involved with helping the COT group establish themselves as being responsible small business people who had legitimate phone complaints. It was through Amanda Davis’ stand in helping beyond the normal role as an officer of a regulator that she was literally forced to terminate her position.

AXE: Stored Programme Controlled (SPC) Digitally Switched exchange developed by LM. Ericsson, large numbers exist in the Australian network; used also for ISDN

AXE 104: LM Ericsson Digital Switch (Rural). Please note: This is the digital exchange that was installed in Portland in August 1991, cutover from the ARK system (see ARK above). In the AUSTEL COT Report p 167 and questions raised by Senator Alston in the Senate Estimates 25th February 1994, relating to the problems being experienced by Alan Smith while connected to the AXE 104. The Senate Hansard referred to here can be located in Ted Benjamin (Appendix 16(a).

BS: Base station.

Busy Hour: The hour of the day when the average traffic of an exchange is highest. In Telstra Australia practice, it is defined at the two busiest consecutive half hours commencing at the hour of half hour. NETWORK – The hour during which the total traffic flows through the network under consideration is highest. Please note: The Bell Canada International (BCI) tests were supposed to be generated through the Busy Hour. In the case of Alan Smith it has now been confirmed that the BCI tests (if they were done at all) were not generated through the Busy Hour.

C & BI: Charging and Billing Integrity. Please note: Alan Smith has seen reference to this in his Telstra related billing files (somewhere) and therefore has included the acronym here.

CABS: Charging AND Billing System (CABS) is an automatic system for billing customers. CABS was replaced by FLEXCAB (when Mr Smith is not sure when) however, FLEXCAB was supposed to have improved the billing capabilities.

Call Trace: A feature that allows the Customer to cause the last call received to be traced.

Can: Customer Access Network. The part of the network between the telephone exchange main distribution frame and the Service Delivery Point at the customer premises. Please note: on page 243 in the AUSTEL COT Report point 11.8: “…AUSTEL had written to Telecom informing it that the claim in the Bell Canada International report to the effect that Telecom’s customers received a grade of service that meets global standards goes to far because the study was an inter-exchange study only and did not extend to the customer access network – AUSTEL had agreed to the study being so limited on the basis that other monitoring it had requested Telecom to undertake on AUSTEL’s behalf should provided AUSTEL with the data on the efficacy of the customer access network – See Verification issues LGE 7.

CANES: Customer Access Network Evaluation System – C&C system – provides a complete fault registration, recording, diagnosis & analysis environment aimed at improving responsiveness to reported fault – uses A1 technology – interfaces with SULTAN. Please note: this is another system for fault finding by way of intercepting telephone conversations.

CCAS: Call Charge Analysis System – monitoring charging of selected services in analogue exchanges. CCAS type systems can not detect the answer signal & hence can not determine if the call was effective or what the chargeable time is on an effective call – the CCAS records are still of considerable use i.e. to allow comparison of CCR & CCAS records on a-party number b-party number, date, call clearance time. Please note: The CCAS data which was not provided to Alan Smith during the SVT testing, now confirms that the SVT tests were not generated as stated in Telstra’s arbitration defence – see Verification issues LGE 7

CCAS ELMI: This is the monitoring equipment that Telstra used under direction from Telstra to test Alan Smith’s service lines during 1992/93. Gordon Stokes, a local Portland technician had this equipment attached to Alan Smith’s 055 267267 service on the 13th October 1992, but denied to senior Telstra executives that this equipment had been in use during the day it detected incoming call losses to Alan’s business – see Chronology for this date.

CENTOC: Centralised Traffic Occupancy – computerised traffic recording & monitoring for analogue exchanges. Please note: this information was never provided under FOI by Telstra to either Graham Schorer or Alan Smith during their respective arbitrations. While neither Graham nor Alan actual asked by name they required CENTOC data, as the information being sought under the respective FOI requests, they did ask for all ‘network monitoring’ information. Both Graham and Alan have been advised Telstra’s guards the CENTOC, which is some times referred to as CENTOCTRAXE with armed guards as this data does not lie and will determine whether there are network problems affecting certain locations.

CHARMS: Charging Maintenance System – provides locations, rates & charging scales for Telstra’s customer charging – does not store unique customer details, but significant information to classify customer groupings attached to any exchange within the Telstra network.

CLI: Calling Line Identification – a customer facility in crossbar and SPC exchanges for billing and surveillance purposes – identifies the number of the calling party’s line.

CPE: Customer Premises Equipment. All telecommunications terminal equipment located on the Customer premises, encompassing from the analogue telephone to the most advance data terminals and Customer switches. Please note: Page 53 of the Coopers & Lybrand report acknowledged that Telstra had a habit of blaming CPE for faults instead of proper investigation.

DNF: Difficult Network Fault, Please note: in the Coopers & Lybrand and AUSTEL COT Report, they jointly refer to the COT Cases as DNF customers.

DOTAC: Department Of Transport and Communications. Please note: the abbreviation for the Communication’s Ministers Office being used by telcos DCITA – Department of Communications Information Technology and the Arts.

ELMI: Portable Telephone Charge Analyser. Brand of CCAS equipment used mainly in country area’s.

EOS: End of selection code – used to monitor switching & congestion loss. Please Note: this equipment allows the person operating the monitoring switching device to listen in on conversations. See Gordon Stokes witness statements for Telstra’s arbitration defence of Alan Smith’s claims.

FLEXICAB: A system similar to CABS (see above) but, with many more processes and capable of producing very meaningful management reports. Please note: neither Graham Schorer or Alan Smith was provided with any FLEXICAB and/or CENTOCTRAXE data information under their FOI requests (during their respective arbitration’s). This update information would have assisted both the TIO appointed technical consultants as well as the claimant's consultants in determining if the SVT testing was authentic or not.

IRS: Inter-network Routing Service.

ISDN: Integrated Services Digital Network (CCITT) – A switched digital transmission network that provides, through a single digital access point, speech, data and other telecommunication sciences. The hierarchy of digital switching & transmission methods.

LEOPARD: Local Engineering Operations Processing and Analysis of Recording data – a plant recording & maintenance system for telephone services; a computerised system to cater for all field technical records associated with provision and maintenance of services. Please note: While Alan Smith has not fully looked into Graham Schores’s technical information regarding Mr Schorer’s registered fault complaints, Alan has been able to determine that even after Mr Smith had supplied fault information to either 1100 or the designated special fault centre at Waverley (Victoria),Telstra did not all ways registered those faults in Leopard.

LOOP: Pair Gain Signalling System

Macrolink: Telstra’s Primary Rate Access ISDN services that provide a high speed service for speech and data.

MCT: Malicious Call Trace: Please Note: During May to August 1993, Telstra connected Alan Smith’s incoming 055 267 267 service as well as his 008/1800 free-call service to MCT. Also during May to September 1993, Telstra connected Alan’s facsimile service line 055 267230 to MCT. The side affect-problem with MCT is that it does not allow any other intended incoming call to connect for a 90 second period – see witness statement of Telstra’s Dave Stockdale.

MDF: Main distribution Frame. Structural hardware, on one part of which terminate the permanent outside lines entering the Customer’s premises and on another part of which terminate the subscriber line multiple cabling, used for associating any outside line with its corresponding internal exchange wiring.

MOSAIC: Trouble Management system – replaced the Leopard system of fault recording.

Multiplexer: The combining of multiple channels onto a single transmission medium; any process through which a circuit normally dedicated to a single user can be shared by multiple users. Please note: The telephone system that service Alan Smith from August 1991 to 2001, operates using a multiplexer system.

MUX: Multiplexer.

NASM: National AXE System Manger.

NCC: Network Control Centre.

Neat System: Network Evaluation and Test System. A test call system consisting of remote transponders, each connected at the network exchange MDF point as a normal customer, and central management and control unit. This system can conduct a schedule of test calls between transponders to measure call set-up, and hold performance, together with transmission, noise, post dialling delay, and other tests. Please note: During the AUSTEL COT Case investigations, AUSTEL implemented through Telstra that all the DNF problem customers had to have Neat Testing performed at their local exchanges. In the case of Alan Smith, it has now been confirmed (see CAV targets) that NEAT testing was performed at the Cape Bridgewater RCM as shown in the AUSTEL report. The NEAT Ericsson equipment used in the Cape Bridgwater tests October/November 1993, allowed for each test to remain open for a minimum of 120 seconds, allowing for transmission testing for noise, post dialling delay faults. This type of Neat transmission testing was used for the SVT tests carried out on Mr Smith’s service during his arbitration (see CAV targets 7 and the Brian Hodge MBE report for more information.

NODE: A point of a network where various links come together and which generally contains a switching element to direct traffic.

NRR: Not Receiving Ring. Please note: the NRR fault was a major problem uncovered by the COT Cases during late 1992 and into 1994. Example: A caller rings a service and does not get connected either receiving a dead-line, or piecing sounds like a facsimile type noise even though no facsimile is connected at the calling end. In the case of Alan Smith, numerous complaints registered to him by customers (when they finally getting through) or by writing to Alan, was the only way he became aware that a customer was lost.

OAS: Operator Assisted Service.

OFMUX: Optical Fibre Multiplexer Equipment.

OMP: Operations Maintenance Processor.

OPAS: Operations Performance and Support. Please note: from what Alan Smith has observed from reading a number of technical documents is, that OPAS is the last resort used by local rural technicians.

Outrage: Is the time that Service to the customer will be unavailable for. Please note: this type of happening to a customer should be kept to a minimum however, Telstra in the case of Graham Schorer and Alan Smith, their customers experiencing (RVA see below) was an outrage from them twofold.

PABX: Private Automatic Branch Exchange. A small switching system located on a customer’s premises which serves speech and data extensions within a business complex and provides access to the public network. Please note: during the COT arbitrations’ Golden Messenger was operating off of a PABX. System.

PSTN: Public Switched Telephone Network. Public telephone network which generally provides switching and signalling for local, long-distance, and international voice and low-speed data.

RAX: An outdated communications system that only operated in low call rate locations, designed in the 50s. Please note: the Cape Bridgewater Holiday Camp was connected to an RCM until August 1991.

RCM: Remote Customer Multiplexer – digital pair gain system. Please note: The Cape Bridgewater Holiday Camp operates off of an RCM which is housed in a hut. This system is not an exchange and is totally unmanned.

REARK: Private company which produces TELCATS reports. Please note: often –quite often, from 1992 through to 1994, REARK was used by Telstra to enable them to provide reports to the Minister of the day, including the regulator AUSTEL

RUBAS: Traffic figure based on the 50 highest half-hour average traffic figures over a 7 day period. Please Note: like the CENROC TRAXE and CABS data, the traffic information obtained from RUBAS in the Warrnambool and Portland locations (South West Victoria) was also not supplied to Alan Smith under FOI during his arbitration.

RVA: Recorded Voice Announcement. A recorded message is played through to a caller (who might have dialled the right number) but is confronted with a recorded message stating that “the number you have called is not connected.” Please note: Telstra has recognised that the RVA fault was a known National Network Software problem that came about when they implemented the 1800 number. The RAX and RCM system installed at Cape Bridgewater, which suffered congestion, gave the same type of (recorded message) to the caller into Cape Bridgewater when the system was congested.

SMART 10: Subscriber Monitoring & Registration Terminal. This system operates similar to the CCAS see above.

SPC 1 Stored Processor Controlled (Exchange) e.g. AXE, ARE

SULTAN: Subscriber Line Test Access Network – provides test information vital for diagnosis of customer fault reports and network performance monitoring – used with LEOPARD and CANES –C&C system. Please note: this is another tool for voice interception.

TIMS: Telephone Information Management System.

TRAFFIC: A term applying to simultaneous calls in progress, not to total calls generated over a period of time.

TRAXE: Traffic Recording for AXE – data acquisition system – uses Data General minicomputers located in each State – apart from traffic analysis. Please note: Alan Smith has already mentioned above, that CENTOC TRAXE data information should have been provided to him under FOI during his arbitration. The Customer Remote Multiplexer RCM at Cape Bridgewater was service via an AXE in Portland.

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Second draft story

The depths to which Telstra stooped in its conduct with the COT claimants seems to suggest just how little confidence Telstra had in its own case. But why was it so fearful of being found liable? What was the worst that could happen if our claims were vindicated? What was it trying to conceal? What convinced the arbitrator to allow Ericsson telecom to buyout (purchase) the principal arbitration technical unit Lane telecommunications Pty Ltd who was investigating the poor perfomance of the Ericsson telephone exchanges (the subject matter under investigation in the arbitration process refer to Chapter 5 - US Department of Justice vs Ericsson of Sweden)?

When I was able to prove to AUSTEL, the government communications regulator, that Telstra had carried out their threats made against me for assisting the Australian Federal Police with their investigations that Telstra was intercepting my phone conversations and then my arbitration-related faxes (See Senate Evidence File No 31), I took those claims to AUSTEL, only to find that AUSTEL had concealed the most relevant document of all documents needed to prove my case, namely, AUSTEL’s Adverse Findings, which demonstrates that Telstra had not been supplying me a telephone service as they should have under their licensing condition.

Why would a government withhold from one of its citizens such a vital document knowing it would win me my case? Who forced the government to provide only Telstra a copy and not the claimants, as Chapter 1 Fraudulent Conduct Falsified Reporting clearly shows.

These actions by AUSTEL was an abuse of process when they allowed me to commence my arbitration proceedings against Telstra, without the necessary documents I needed to support my claim. To have allowed me to spend more than $300.000.00 in arbitration fees trying to prove something that the government had already established against Telstra breached their statutory obligation towards me as a citizen of Australia.

With my business still suffering from ongoing telephone problems for a further six years after the conclusion of my arbitration with Telstra, the Telecommunications Industry Ombudsman (TIO) and AUSTEL all denying my phone problems were still apparent in 2001, I reluctantly sold. Within two weeks of that sale, the new owners were now writing to Telstra, the TIO and AUSTEL complaining of the same ongoing telephone faults (refer to Chapter 4 The New Owners Tell Their Story).

Not to be outdone, at the age of 68 in 2008, I took the government to task for withholding relevant pre-arbitration discovery documents that the government had initially been promised the COT Cases, which included me in March 1994, they would release to us when we signed our arbitration agreements in April 1994 (which we did),

During my ten-month Administrative Appeals Tribunal (AAT) with the government communications regulator (now called ACMA), I was told unofficially the government had branded me vexatious and my claims frivolous. Mr G.D. Friedman (Senior Justice of AAT) heard my case against ACMA, advising them they should provide me with all requested Freedom of Information (FOI)documents they had previously concealed leading up to and during my arbitration.

Mr G.D Friedman told the two government lawyers representing ACMA that in the name of fair justice, ACMA should provide me with what I sought during that AAT hearing.

It is now June 2023, and I am still waiting to receive those documents from the government, but what I have got is the transcript of my AAT hearing on 3 October 2008, where Mr G.D Friedman stated to the two government lawyers and those attending my case (refer to Chapter 9 - The ninth remedy pursued) .

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”

COPY OF MY STORY

“There is no greater agony than bearing an untold story inside you.”

― Maya Angelou

Absentjustice is a work in progress, last edited June 2023.

Clicking with your mouse/cursor on the link behind the various images displayed below will take you to a story of deception and wrongdoing during the Australian government-endorsed arbitration, which was administered by the Telecommunications Industry Ombudsman (TIO) who had seconded from Telstra, a technical consultant to investigate the Ericsson AXE telephone exchanges that the COT Cases were saying were destroying their businesses even at the time they were in arbitration. However, as our COT story shows, the TIO did not pay Grant Campbell, who had seconded Mr Campbell.

Mr Campbell, while still employed by Telstra, went on to mislead various parties about my complaints of ongoing Ericsson telephone exchange faults. So as you work through this complex story, make sure you click each of the images to gain a better understanding of this story.

Please note: the placing of the aforementioned links behind the images is currently being implimented as should be finsihed by 4 June 2023.

Thank you.

Introduction

And so my telephone saga began

My name is Alan Smith. This is the story of my battle with a telecommunications giant and the Australian Government, a battle that has twisted and turned since 1992, through elected governments, government departments, regulatory bodies, the judiciary and the Australian telecommunications giant, Telstra. This story commenced in April 1988 and is still, being ignored by the government.

This is the story of a group of ordinary small-business people fighting one of the largest companies in the country. The story of how for years Telstra refused to address the many phone problems that were affecting the capacity of the COT Four to run their businesses, telling them 'No fault found,' when documents in this publication and on our website show they were found to have existed as our story shows.

How Telstra and its legal arbitration defence team perverted the course of justice by using such dubious strategies as intercepting relevant faxes, failing to deliver crucial FOI documents (or delivering them months and even years too late, often so highly censored that little intelligible remained), even destroying documentary evidence and fabricating evidence.

How the central points of our claim at arbitration was ignored by the arbitrator and how no amount of effort to have these points addressed bore any fruit. How, in the course of all these travesties, the regulatory bodies — Austel (for the government) and the TIO (for the carriers) — failed to exercise any control over Telstra to the point where they could reasonably be seen as acting in concert.

Together, these travesties spell a breakdown of justice, way out of proportion to the problem we began with — people asking that their phone services be guaranteed to work to a reasonable standard so that they can reliably conduct their businesses.

Each of the COT members assumed, as most telephone users would assume, that their phone faults would be quite easily found and fixed by Telstra's skilled technicians. But 'No fault found' was the constant refrain, and the problems continued unabated throughout the course of our arbitrations, and for years afterwards, with disastrous effects on our businesses. This seemed incomprehensible: everyone had a phone the system is supposed to work for everyone. What was going on?

Turning a blind eye to what was unlawful behaviour

And why did it seem everyone was protecting Telstra, turning a blind eye to what was unlawful behaviour? Withholding important discovery documents in an arbitration procedure is unlawful. Tampering with evidence in the arbitration is unlawful Tampering With Evidence. Relying on defence documents that are known to be flawed in arbitration is unlawful Telstra's Falsified SVT Report and Telstra's Falsified BCI Report. The TIO and Austel often refused to act; Members of Parliament, when in Opposition, were happy to provide support for the COT cause, but as soon as the government was theirs, that support vanished. No one was prepared to make Telstra accountable. It was enough to make the most level-headed person suspect conspiracies.

The depths to which Telstra stooped in its conduct with the COT claimants seems to suggest just how little confidence Telstra had in its own case. But why was it so fearful of being found liable? What was the worst that could happen if our claims were vindicated? What was it trying to conceal? What convinced the arbitrator to change the findings in the DMR & Lane arbitration technical evaluation report?

This probably means that anyone from the current generation who might pick up a copy of my story Absent Justice Book 2 or view this website absentjustice.com will find it difficult to understand how it can be that, just twenty or so years ago, a corporation like Telstra (and its government minders) were able to cheat, and cheat, and continue to cheat so many Australians into believing that they were trying to repair the ailing Australian telecommunications network when, instead, they were band-aiding the many serious problems that existed in Australia's communications network. And why were they attempting to postpone this expenditure? Because privatization was on the government agenda and, within Telstra, the attitude from the top brass down was one of 'let the shareholders foot the bill after privatization', and this was the only answer to the ongoing problems that were causing devastating problems for businesses around the entire country.

It is important to stress here that every single detail recorded on this website is not only true but is also supported by irrefutable evidence that can now be readily accessed directly from the website. It is also important to note that, as the result of a recent discussion with other members of the COT group (even though two of them are very sick at the moment) we decided that, considering the stress that we are all still suffering, it would be better to release our stories to the public just as they are on the website now, even if this is not exactly how we had hoped to present them in January 2015, when we began to put the website together.

When clicked on, the three Telstra network images below show my claims are valid and are an excellent reason to continue with this story.



Chapter 1

No Fault Found

Have you ever had a reason to complain about your phone bill?

Has a friend insisted they have telephoned you, and you had not answered, even though you know you were right beside the phone at the time?

Has anyone expressed amazement at how much time you spend on the phone or prospective clients rebuked you for being unprofessional and not answering your phone when you know it has not rung for days and you have hardly made any outgoing calls?

If you have experienced even one of these situations, you will understand why I sometimes feel I have lived through a nightmare. I experienced all these problems and more for almost ten years. I am still seeking an equitable resolution of them.

The saga began in late 1987 when my wife Faye and I bought a holiday camp accommodation business perched high above Cape Bridgewater, near Portland on the southwest coast in country Victoria. The Cape Bridgewater Holiday Camp had been run as a school camp, and we intended to turn it into a venue for social clubs and family groups as well as schools.

The Camp was a decidedly phone-dependent concern, the phone was the preferred access to us for city people — and our big mistake when we fell in love with the place was to fail to look-into the telephone system. In those days there were no mobile coverage and business was not done via the internet or by email. In fact, the business was connected to a phone exchange installed more than 30 years before and designed specifically for 'low-call-rate' areas. This antiquated and unstaffed telephone exchange had only eight (8) lines. It was never intended to handle the volume of calls made by a larger population plus holiday makers when Faye and I took over the business. In blissful ignorance, we went ahead with the sale of our home in Melbourne, and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.

I knew this was a business I could run successfully

I knew this was a business I could run successfully. From the age of 15, when I went to sea as a steward on English passenger/cargo ships, I had worked in areas that prepared me for the hospitality trade. In 1963 I jumped ship in Melbourne to work as an assistant chef in one elite hotel after another, then two years later, I joined the Australian Merchant Navy. By 1975, I had been a chef on many Australian and overseas cargo ships and now returned to land.

Faye and I had married in Melbourne in 1969, and I worked freelance in the catering industry and on tugboats while I studied for a hotel/motel management diploma. I had already taken on the management of one hotel/motel and pulled it out of receivership to be re- leased. By 1987, at the age of 44, I had enough experience behind me to be confident that I had the skills and knowledge to turn a simple school camp into a successful multifaceted concern.

I made personal visits to almost 150 schools and shires to extol the virtues of the Camp, and in February 1988, had some 2000 colour brochures printed and distributed. Then we waited for the phone to ring with inquiries, in vain. There was not even a modest 1% inquiry rate as a result of this marketing exercise.

By April we were beginning to realise the problem might lie with the telephone service. People asked why we never answered our phone or were suggesting we install an answering machine to take calls when we were away from the office. We had an answering machine, but even after installing a new one, the complaints continued, coupled with comments about long periods when the phone was giving the engaged signal.

As time went on, call 'drop-outs' added to our problems when the line just went dead in the middle of a call. If the caller hadn't yet given us contact information and didn't ring back, we lost that contact. Between 19 April 1988 and 10 January 1989, Telstra logged nine separate complaints from me about the phone service plus several letters of complaint. A typical response to my 1100 call (the number you called when there was a problem) was a promise to check the line. A technician was sent out on rare occasions, whose response was inevitable 'No fault found' while my problems continued unabated.

Eventually, we discovered that the business's previous owner had endured the same problems and had complained equally unsuccessfully about them. In 1988, when I was beginning to marshal my case against Telstra, I obtained several documents through the Freedom of Information Act (FOI). According to a document headed 'Telstra Confidential: Difficult Network Faults — PCM Multiplex Report', with a sub-heading '5.5 Portland — Cape Bridgewater Holiday Camp', Telstra was aware of the faults in early 1987.

Harry, our next-door neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Fred, another local and once the owner of Tom the Cheap grocery chain, suffered from similar problems to ours for many years. He commiserated, saying, 'But what can you expect from Telstra when we're in the bush?' Well, I expected better than this, and certainly, we were promised better than this.

We encouraged people to write, but the telephone culture was endemic. People wanted an immediate response. As bookings dwindled instead of increasing, I began to feel I hadn't properly researched the pros and cons before moving to Cape Bridgewater. I was beginning to question what I had done, asking Faye to agree to sell the family home so that I could satisfy my ambition to run my own business. It was not the fun I had anticipated. I was operating in a state of constant anger, a very unamusing Basil Fawlty.

We went touring South Australia to sell the concept of our Camp through the Wimmera area, but responses were few. Was it the phone to blame? How could, we be sure? The uncertainty itself added to the stress.

Sometimes the culprit was blindingly obvious. I was soon labelled a vexatious litigant, and my claims frivolous. On a shopping expedition to Portland, 20 kilometres away, I discovered I had left the meat order list behind. I phoned home from a public phone box, only to get a recorded message telling me the number was not connected! I phoned again to hear the same message. Telstra's fault centre said they would look into the matter, so I went about the rest of the shopping, leaving the meat order to last. Finally, I phoned the Camp again, and this time the phone was engaged. I decided to buy what I could remember from the list and hope for the best; however, I was not surprised when I got home to learn the phone had not rung once while I had been out.

Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA): 'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged what I later discovered among 1994 FOI documents, an internal Telstra memo stating: -

'This message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader.' AS-CAV Exhibit 1 to 47

Another Telstra document referred to the need for

a very basic review of all our RVA messages and how they are applied … I am sure when we start to scratch around, we will find a host of network circumstances where inappropriate RVAs are going to line. (AS6 file AS-CAV Exhibit 1 to 47

It seems the 'not connected' RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often as the following Telecom/Telstra Folio C04006, C04007 C04008 document shows.

Why were Folio C04006, C04007 and C04008, headed TELECOM SECRET Front Page Part Two 2-B) not provided to the arbitrator hearing my case before Nine Telstra employees swore under oath my Telstra arbitration complaints were perceived problems?

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

For a newly established business like ours, this was a major disaster. Still, despite the memo's acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints, I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, 'No fault found' was the finding by technicians and linesmen.

The frustration was immense, coupled with uncertainty. Were our problems no more than general poor rural service compounded by the congestion on too few lines going into an antiquated exchange? The Camp was, at that stage, the only accommodation business being run in Cape Bridgewater. Obviously, we relied on the phone more than most people in the area. But if there was some specific fault, why weren't the technicians finding it?

The business was in trouble, and so were we. By mid-1989 we were reduced to selling some shares for our operating costs. Here we were, a mere 15 months after taking over the business, and we were beginning to sell off our assets instead of reducing the mortgage. I felt like a total failure. Neither of us was able to lift the other's spirits.

I decided to do another round of marketing in the city. I would give it all I had. We both went. Was it masochism that made me ring the Camp answering machine, via its remote access facility, to check for any messages so that I could respond to them promptly? Whatever it was, all I could get was the recorded message: 'The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.' On the way home, just outside Geelong, we stopped at a phone box, and I tried again. Now the line was engaged. Perhaps somebody was leaving a message, I thought. Ever hopeful.

There were no messages on the answering machine. And nothing to be gained by asking why I had received an engaged signal. How many calls had we lost during the days that we were away? How many prospective clients had given up trying to get through because a recorded message told them the phone was not connected? Anger and frustration were very close to the surface.

Near the end of October 1989, our twenty-year marriage ended. I had already been taking prescribed drugs for stress; that afternoon, I added a quantity of Scotch and hunkered down in one of the cabins. Faye, understandably, was seriously concerned and called the local police, who broke into the cabin to 'save' me from me. They took me to a special hospital, and I am forever grateful to the doctors who confirmed that I wasn't going 'nuts' and who sent me home the following day.

When I took refuge in the cabin on the afternoon of 26 October 1989, only to find my refuge attacked by a Police rescue team, I was transported straight back to China in 1967. After some heavy discussions with my wife and my ‘saviours’ who, in my confused state, seemed more like the Red Guard soldiers than anything else, I was taken to hospital — in a straight jacket.

I will be forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who allowed me to return to the camp the following day, accompanied by my mate’s wife, Margaret. I will also be forever grateful to Jack for sending Margaret to ‘bail me out’ so to speak. The fun, however, had just begun.

At this point I need to fill in some details regarding an incident that occurred back in 1967, during the cultural revolution in China. At that time many young Australians were supporting the American fight against Communism in Vietnam and this young man was sailing with the Merchant Marines out of Australia. We were headed to China, from Port Albany in Western Australia, with a cargo of wheat, although the Australian Labor Party was against our ship leaving. A brief explanation of this China issue is highlighted in Chapter 7- Vietnam-Vietcong/

While I was in this particular hospital in Warnambool (southwest Victoria), my friends Margaret and Jack from Melbourne, who were well aware of what had happened to me in China, decided that Margaret would come to Warnambool and take me home to the holiday camp which was 110 kilometres away  'bail me out'. The fun, however, had just begun for me and Margaret.

Margaret and I arrived back at the Camp to be confronted with a disaster area. Faye had left the night before, following advice from various people that she needed to be in a 'safe house'. Doors had been left unlocked, meat from the deep freeze was left out on benches, and various items had mysteriously vanished. And, according to the Camp diary, 70 students from Monivae Catholic College in Hamilton were due to arrive in two days, booked in for five days and four nights. Without Margaret's assistance, I would have been wiped out.

Mourning the end of my marriage, the very thought of shopping was a mountain I didn't want to climb. What to feed 70 students plus staff? By the time I got my head around what to order, it was Sunday evening, and the Monivae group were due the following day. Then the hot water service broke down!

The staff were not happy about cold showers! Even so, for the next five years, Monivae College returned two and sometimes three times a year. Their support throughout this awful period helped me keep trading.

And, of course, Margaret's support. She carried so much through that first week. Aware that I was holding on by my fingernails, she suggested Brother Greg, one of the Monivae teachers, come to the house to talk to me. It was an inspired suggestion, and we talked well into the night, Margaret too, working through many things, from early childhood experiences to the end of twenty years of marriage.

I began to keep a log

In the weeks that followed, my phone problems continued unabated. I began keeping a log of phone faults, recording all complaints I received in an exercise book, along with names and contact details for each complaint and a note regarding the effect these failed calls were having on both the business and on me.

One day the phone extension in the kiosk was dead. The coin-operated gold phone in the dining room, which was on a separate line, had a normal dial tone, so I dialled my office number, only to hear the dreaded:

'The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.'

I was charged for the call because the phone did not return my coins! Five minutes later, I tried again. This time the office phone appeared to be engaged (it wasn't), and the gold phone happily regurgitated my coins.

I used this testing routine frequently over the next months and registered every fault I found with Telstra. The situation was beginning to tell on me. Why was this still happening after so many complaints? Could Telstra really be this incompetent? Or was there something worse going on? Had I made too much of a nuisance of myself? But that was ridiculous. Under the circumstances, I had behaved impeccably politely … when in fact, I had fantasies of sheer violence at times.

Now I was no longer one half of a working husband and wife team, and I started 1990 digging into my pitifully low financial reserves to pay staff or risk losing everything. I was suffering what is commonly known in the world of finance as a 'consequential resultant loss' — Faye was no longer contributing her unpaid labour. I now had to pay her a yearly dividend on her financial investment in the business.

The future looked grim. Telstra did not attempt to remedy the faults or at least no attempt that made any difference. The constant refrain of 'No fault found' was wearing very thin. I found it hard not to dwell on how many prospective customers night be lost because they couldn't reach me by phone. Nor was it long before the legal vultures were circling. I hadn't met my financial agreement with Faye, and her solicitor was demanding money. I was having trouble meeting my own legal costs, let alone finding any extra. My son's school fees were overdue, and to pay some of the mounting debts, I sold the 22-seater school bus I had originally used to ferry customers around and purchased a small utility in its place.

On the positive side, I had met a woman called Karen, who lived in Warrnambool. Our relationship developed to become quite serious. When Karen knew I was about to wind up my business because I couldn't raise funds to make any more payments to Faye, she put her house up as security for a loan, thereby giving me two years of breathing space. She believed in me, and she believed in the capacity of the Camp to succeed. She wanted to be a partner in it. This was early in 1991.

Things were starting to look up, especially when I discovered that a new exchange was to be installed later in the year at Cape Bridgewater. I was hoping this would alleviate all the problems of congested lines. It was just a question of time. Karen moved in with me, and we worked together with new energy to pull the business out of the doldrums.

In August that year came another joy when I got the first confirmation from someone within Telstra that they knew my phone problems were real. I felt such a relief that the faults were, at last, being acknowledged, and I asked for my new friend's name. I was so happy; I didn't even really register any perturbation when all he could tell me was that he worked at the fault centre in Hamilton.

According to Telstra's own file note:

Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it's not engaged …

This has been a continuing problem and he is losing a lot of business.

I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs.

I also said we would have a look at the service now to try and get it working correctly until cutover. (AS4 file AS-CAV Exhibit 1 to 47 .

At last, someone in Telstra had given me something to hang on to. When Karen sold her house, a part of the proceeds went towards paying my legal fees and my debt to Faye. I paid Faye out, and Karen's name was now officially on the title to the business. We counted the days to the installation of the new exchange.

But the triumph of a new exchange when it came at the end of August 1991 was the briefest of victories. It made not the slightest difference. The telephone problems continued just as before. However, now exacerbated by the dreadful disappointment that the war wasn't over at all. Increasingly, people reported complaints of recorded voice announcements, and I continued to complain to Telstra about faults which seemed to me to be getting worse, not better. I asked technicians if a new exchange didn't correct the problems, then where could the faults lie? Their response was unbelievable: 'No fault found.' They simply refused to engage with my question. I cursed the fact that I had no contact details for the one person who had acknowledged that there were faults. I did not see the file note he wrote until 1995.

New bookings continued to be rare. The Camp was getting in need of painting and upgrading. The business looked sad and bedraggled, and so people who passed by were not interested in stopping. And when we did have a booking, cash flow was a problem, making it tricky to put food on the table. We somehow always managed, but it was very stressful. Karen was starting to see her investment going down the drain, and the strain on her came to a head while we were in the middle of organising a charity camp for under-privileged children.

Despite the financial precariousness of the enterprise, I had from the start sponsored the stays of under-privileged groups at the Camp. It was no loss to me really: sponsored food was provided through the generosity of a number of commercial food outlets, and it cost me only a small amount in electricity and gas.

In May 1992, we held a charity week for kids from Ballarat and South-West Victoria, organised largely by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat. Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact. The Calls were either ringing out or she was getting a deadline — no sound at all. Finally, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements.

Testimonials

Between April 1990 and when I sold the holiday camp in December 2001,  I continued to partly sponsor underprivileged groups to stay at the camp during the weeks (that became years) when the phone problems continued to beset the holiday camp. At least some money was coming into the business. Those wanting a cheap holiday persisted by telephoning repetitively regardless of being told the camp was no longer connected to Telstra's network. These groups wanted a holiday, and if they had to drive for hours to make a booking as Loreto College did (see below), then a drive they did.

The holiday Camp could sleep around 90 to 100 persons in fourteen cabins. I arranged sponsored food purchases through the generosity of a number of commercial food outlets and these groups then just used the camp facilities — it didn’t actually cost me anything other than a small amount of electricity and gas. At one point around this time, May 1992, I had organised a charity week for kids from Ballarat and the South West, including Warrnambool, Hamilton and Portland. This group was organised by Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat, and I am sure she would not be offended to know that I think of her as the ‘mother’ of the project.

Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact, Calls were either ringing out or she was getting a deadline, or a message that the number she was ringing was not connected to the Telstra network. Sister Burke knew otherwise. On two particular occasions in 1992, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements for those camps.

Just as she arrived at the Camp, Karen took a phone call from a very angry man who wanted information about a singles weekend we were trying to set up. This caller was quite abusive. He couldn't understand why we were advertising a business but never answered the phone. Karen burst into tears. She had reached the end of her tolerance, and nothing I could say was any help. When Sister Burke appeared in the office, I decided absence was the better part of valour and removed myself, leaving the two women together. Much later, Sister Burke came out and told me she thought it probably best for both of us if Karen were to leave Cape Bridgewater. I felt numb. It was all happening again.

But it wasn't the same as it had been with Faye. Karen and I sat and talked. True, we would separate, but I assured her that she would lose nothing because of her generosity to me, that I would do whatever was necessary to buy her out. We were both relieved at that. Karen rented a house in Portland, and we remained good friends, though, without her day-to-day assistance at the Camp, which had given me space to travel around, I had to drop my promotional tours.

Twelve months later, in March of 1993, Sister Karen Donnellon, also from Loreto College, tried to make contact via the Portland Ericsson telephone exchange to arrange an annual camp.   Sister Donnellon later wrote:

“During a one week period in March of this year I attempted to contact Mr Alan Smith at Bridgewater Camp. In that time I tried many times to phone through.

Each time I dialled I was met with a line that was blank. Even after several re-dials there was no response. I then began to vary the times of calling but it made no difference.”

Some years later, I sent Sister Burke an early draft of my manuscript Absent Justice My Story‘ concerning my valiant attempt to run a telephone dependent business without a dependent phone service. Sister Burke wrote back,

“Only I know from personal experience that your story is true, otherwise I would find it difficult to believe. I was amazed and impressed with the thorough, detailed work you have done in your efforts to find justice”

Of course, Sister Maureen Burke and Sister Karen Donnellon persisted with their continuing battle to find a way to get a proper telephone connection for the holiday camp, partly because it was a low-cost holiday for all concerned but also because these wonderful women were well aware that my business was continuing to exist, albeit ‘by the skin of its teeth, even though Telstra’s automated voice messages kept on telling prospective customers that the business did not exist or, alternatively the callers simply reached a dreaded silence that appeared to indicate that the number they had called was attached to a ‘dead’ line. Either way, I lost the business through that may well have followed if only the callers could have been successfully connected to my office via this dreaded Ericsson AXE telephone exchange.

A letter dated 6 April 1993, from Cathy Lindsey, Coordinator of the Haddon & District Community House Ballarat (Victoria) to the Editor of Melbourne’s Herald-Sun newspaper, read:

“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.” ( See Evidence File 10 B )

During this same period, 1992 and 1993, Cathy Lindsey, was a professional associate of mine Cathy signed a Statutory Declaration, dated 20 May, 1994 explaining a number of sinister happenings when she attempted to collect mail on my behalf from the Ballarat Courier Newspaper office (AS-CAV Exhibit 1 to 47  - See AS – CAV 22). This declaration leaves questions unanswered as to who collected my mail and how did they know there was mail to be collected from the Ballarat Courier mail office. On both occasions, when this mail was collected by a third person, I had telephoned Cathy, informing her the Ballarat Courier notified me there was mail addressed to me waiting to be picked up.

On pages 12 and 13 transcript, from the AFP inquiry into my allegations that Telstra unlawfully intercepted my telephone conversations, the AFP state at Q59 Australian Federal Police Investigation File No/1:-

“And that, I mean that relates directly to the monitoring of your service where, where it would indicate that monitoring was taking place without your consent?” (AS-CAV Exhibit 1 to 47  - See AS – CAV 23-A)

I also provided the AFP Telstra documents showing Telstra was worried about my telephone complaint evidence because if it ever reached an Australian court, I had a 50% chance of proving Telstra has systemic phone problems in their network, which meant in simple terms, Telstra was operating outside of their license to operate a telephone service where charging their customers for a service not provided.

21st April, 1993: Telstra internal email FOI folio C04094 from Greg Newbold, to numerous Telstra executives and discussing “COT cases latest”, states:-

“Don, thank you for your swift and eloquent reply. I disagree with raising the issue of the courts. That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complaints remain vexacious .” (GS-CAV Exhibit 1 to 88 - See GS CAV 75)

What these Telstra executives were forgetting is that Telstra was a publically owned corporation. Therefore, those executives were responsible for ensuring the integrity of Telstra's working conditions, something which Telstra has never even understood.

Children's lives could be at risk

Comments made from the Herald Sun newspaper dated 30 August 1993, confirm just how damaging some of these newspaper articles were to my already ailing business with statements like:

“The Royal Children’s Hospital has told a holiday camp operators in Portland that it cannot send chronically ill children there because of Telecom’s poor phone service. The hospital has banned trips after fears that the children’s lives could be at risk in a medical emergency if the telephone service to the Portland camp continued to malfunction”.

The centre’s stand follows letters from schools, community groups, companies and individuals who have complained about the phone service at Portland’s Cape Bridgewater Holiday camp.”

Youths from the Royal Children’s Centre for Adolescent Health, who were suffering from “chronic illnesses”, visited the camp earlier this year.

Group leader Ms Louise Rolls said in a letter to the camp the faulty phones had endangered lives and the hospital would not return to the camp unless the phone service could be guaranteed” (Arbitrator File No/90)

After the Melbourne Children's Hospital recorded a near-death experience with me having to rush a sick child with cancer to the Portland Hospital 18 kilometres away from my holiday camp, Telstra finally decided to take my telephone faults seriously. None of the 35 children (all with cancer-related illnesses) had mobile phones or the six or so nurses and carers. Mobile telephones could not operate successfully in Cape Bridgewater until 2004, eleven years after this event. With my coin-operated Gold Phone also plagued with phone problems, it took several tries to ring out of the holiday camp. An ambulance arrived once we could ring through to the Hospital.

It took this almost tragedy for Telstra, after five years, to send someone of real technical experience to my business. Telstra's visit happened on 3 June 1993, six weeks after the Children's Hospital vowed never to revisit my camp until I could prove my camp was telephone fault free. No hospital where convalescent is a good revenue spinner has ever visited my business, even after I sold it in December 2001.

It was another fiasco that lasted until August 2009, when not so new owners of my business was walked off the holiday camp premises as bankrupts.

Chapter 2

Casualties of Telstra

Back to July 1992, when Sister Maureen Burke IBVM, the Principal of Loreto College in Ballarat visited the holiday camp to discuss the activities I had organised for the Children, Karen, my partner who had joined me three years after my marriage break up to Faye, had heard of a restaurant in Melbourne suffering the same phone problems that was crippling my business. It seemed then, that Sister Maureen Burke IBVM was around at some of my very difficult times when trying to run a telephone dependant business without a reilable phone service.

I felt a great comfort in hearing this and knew I needed to meet the owner. Making phone contact with the restaurant was difficult; eventually, I got through to Sheila Hawkins, proprietor of The Society restaurant in Bourke Street, in the centre of the city. We arranged to meet, and I travelled to Melbourne in early August.

It was so good to talk to someone who experienced similar problems. And there were more of us. Sheila knew of an Ann Garms who ran the Tivoli Theatre Restaurant in Brisbane, who was also having serious telephone problems. Back in Cape Bridgewater, I rang Ann to discover she was coming to Melbourne the following week to register her own complaints with Austel, the Australian Telecommunications Regulator. We arranged to meet together with Sheila. I went into the city again for the meeting, where Ann mentioned another Brisbane business in similar trouble — a car parts company run by Maureen Gillen. Like Ann's business, Maureen's was trunked off the Fortitude Valley exchange. Sheila, meanwhile, had contacted Graham Schorer, who somehow ran the Golden Courier Service out of North Melbourne — despite a very bad phone service.

Finally, our little group gathered together at Sheila's restaurant in Bourke Street, except for Maureen, who couldn't make the journey from Brisbane. It was Sheila who suggested we call ourselves COT — Casualties of Telstra. This was one of her last actions with the group as she withdrew shortly after due to ill-health.

At the top of the list of problems we held in common were those three little words: 'No fault found.' It wasn't just that we all had to put up with ongoing service faults. Telstra's evasion of responsibility in this regard made those faults a nightmare. Telstra had a duty to deliver us service up to a recognised network standard, and by failing to 'find' their faults, they were effectively avoiding carrying out their statutory obligation.

In October 1992, COT had its first official meeting with Telstra at the Ibis Hotel in Melbourne. We were a united and optimistic group of small-business telephone users on our way down the path to justice. We had no idea what a long haul we were in for. Indeed, this first meeting felt eminently successful. Telstra sent three executives; they treated us courteously, and we felt that our claims were being taken seriously. We were seen and treated as a concerned group of small-business people who Telstra had consistently ignored. We asked for Austel (the government regulator) to be the 'honest broker' in our matters, and the executives agreed to this. They took the documentary evidence we had brought, and at the end of the meeting, we were left with a sense that it was all soon to be resolved.

After that initial meeting, there were a number of meetings with Telstra and Austel. Based as he was in the city, Graham Schorer was the COT representative. Under pressure from Austel, Telstra was acknowledging that faults existed, though they still held back from admitting the scale of faults we knew to be true — and indeed, as it turned out, that they too knew it to be true.

Guaranteed to Network standard

Meanwhile, in July 1992, I was obliged to ask Telstra to guarantee that my phone service was up to standard. A bus service wanted such a guarantee (in case of urgent communication needs) before it would contract to bring groups to the Camp. Although I did not see how Telstra could guarantee such a thing based on current performance, I thought a guarantee might have some use as leverage.

Not one but two guarantees eventually arrived (in the event, both too late to secure the contract with the bus company). The first stated that my phone service was indeed 'up to network standard':

Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted. 1 September 1992 (AS12 file AS-CAV Exhibit 1 to 47

The second stated:

We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours. 18 September 1992 (AS13 file AS-CAV Exhibit 1 to 47

Now I need to jump ahead of myself here. Material that I did not have access to at the time now reveals something of what was going on in the telephone exchange while my business was sinking.

In 1994 we COT members all ended up involved in arbitrations with Telstra. According to the rules of arbitration, Telstra had a legal obligation to provide us with relevant documents under the Freedom of Information Act.

You will hear a lot more about this in due course, not least about the unreasonable time it took for FOI document requests to be delivered (often years too late). Enough to say here, that in an FOI release in mid-1994, I received documents referring to the general congestion problem at Cape Bridgewater.

The second paragraph of a document titled 'Subject PORTLAND – CAPE BRIDGEWATER PCM HBER' of 12 July 1991 was of particular interest:

When the 'A' direction of system 2 was initially tested, 11,000 errors per hour were measured. In the 'B' direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable.

This level of error was, in fact, known at least as early as February 1990, the very time my complaints were being stonewalled. And nor was it acknowledged to me at the time of writing (July 1991). And in the new exchange, the problems continued, as another document, titled 'Portland — Cape Bridgewater — RCM System' showed, referring to the information logged in March 1993, long after Telstra had first reported these massive error rates:

Initial error counter readings, Portland to Cape Bridgewater direction:

System 1

System 2

System 3

SES

0

0

0

DM

45993

3342

2

ES

65535

65535

87

At this stage we had no idea over what period of time these errors had accumulated. 12 July 1993 (AS30 file AS-CAV Exhibit 1 to 47

The second page of this document explains why they 'had no idea over what period of time these errors had accumulated':

The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland.

They didn't know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had been left unconnected. Since this was an un-manned exchange, no one could know when faults occurred — except, of course, us poor, defenceless customers.

Meaning that in September 1992, when Telstra management had written to me stating that the quality of my telephone service was guaranteed as up to network standard, they had failed to realise that this alarm had not been connected. Even the local telephone technicians were oblivious to the call loss due to the unconnected alarm system in the exchange. What kind of investigation into the faults I had reported over several years does this demonstrate? A farcical one. How, for several years, could they fail to notice that the alarm wasn't connected?

A compensation deal

The formation of COT had come not a moment too soon for me. The frustration of struggling with problems that seemed immune to complaints and about which I could do nothing but complain could finally be shared. I had lost faith in my own judgement by this time; I had let down two different partners who had trusted me, and I was now borrowing from friends just to keep the Camp running on a day to day basis. Through all of this, of course, the phone faults implacably continued.

The COT group continued to negotiate with Austel and Telstra. In late 1992 our combined pressure finally produced results: Telstra approached me with a proposal for a compensation payout which included a confidentiality agreement to the effect that I would not disclose the value of any settlement which resulted from this. I signed this agreement on 11 December 1992, and I have honoured my word not to disclose the amount of the payout without prior approval by Telstra.

That same day, I went to Telstra's city fault centre, where the area general manager and I began a long discussion regarding the extent of my financial losses over the four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and tradespeople, describing their experiences trying to ring me. I explained how I had calculated the sum of my losses.

On a number of occasions, the manager left me alone to examine the documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and added that I was free to use the telephone if I needed to discuss anything with my advisors. There was a direct outside line available at all times, so I wouldn't need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer; together, we calculated how much I needed to repay her.

The documents provided by the manager were mostly hand-written and included copies of the so-called 'guarantees' I had received. According to one of the documents. Points 73 to 109 AUSTEL’s Adverse Findings shows there was only a 'single' fault, lasting only three weeks, that triggered the recorded message (RVA) that my number was not connected. This document claimed that the RVA probably caused me to lose only about 50% of all incoming calls over these three weeks. Other documents referred to a minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. The manager told me Telstra agreed to accept responsibility for these faults if I agreed to their offer.

I protested and reeled off again the continuing and constant complaints I had been getting from customers. Her response was a simple 'take it or leave it': this was Telstra's last offer, she told me, and the only other avenue I could follow would be court proceedings. Her final comment was along the lines that, 'Telstra has more time than you have money to fund court proceedings.' Reluctantly, but feeling I had no other choice, I accepted. My reluctance was well justified.

By August 1993 came my first bundle of FOI documents from Telstra. In it, astonishingly, it was a Telstra minute of 2 July 1992, which revealed that local Telstra technicians regarded my complaints as correct about the 'service disconnected' RVA on my line. Not only that, the observation was made that the problem 'is occurring in increasing numbers as more and more customers are connected …' Senator Alston raised this document in Senates Estimates in February 1994, demanding a response from Austel. No response was forthcoming, and nowhere else did this revelation gather any advance for my cause i.e.:

Ericsson AXE faulty telephone exchange equipment (2)

“Our local technicians believe that Mr Smith is correct in raising complaints about incoming callers to his number receiving a Recorded Voice Announcement saying that the number is disconnected.

“They believe that it is a problem that is occurring in increasing numbers as more and more customers are connected to AXE.” (See False Witness Statement File No 3-A)

To further support my claims that Telstra already knew how severe my Ericsson Portland AXE telephone faults were can best be viewed by reading Folios C04006, C04007 and C04008, headed TELECOM SECRET (see Front Page Part Two 2-B) which states:

“Legal position – Mr Smith’s service problems were network related and spanned a period of 3-4 years. Hence Telecom’s position of legal liability was covered by a number of different acts and regulations. … In my opinion Alan Smith’s case was not a good one to test Section 8 for any previous immunities – given his evidence and claims. I do not believe it would be in Telecom’s interest to have this case go to court.

“Overall, Mr Smith’s telephone service had suffered from a poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months.”

And two years later, I received a copy of an FOI document headed Telecom Secret.  (AS5 file AS 1 to 47) This was a copy of the notes brought by the manager to the settlement meeting. The opening page, reproduced here, shows all too clearly that Telstra knew how solid my case was. The manager had blatantly misled me into agreeing to sign.

My acceptance of the offer notwithstanding, I continued to experience faults in my phone service. Particularly call drop-outs when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called 'Elmi' machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.

When the COT Cases exposed this Ericsson AXE call loss rate to AUSTEL (the then government communications regulator) AUSTEL (now ACMA) instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL’s Chairman Robin Davey received a letter from Telstra’s Group General Manager, suggesting he alter that finding:

For example, at point 4 on page 3, Telstra writes:

“The Report, when commenting on the number of customers with Cot-type problems, refers to a research study undertaken by Telecom at Austel’s request. The Report extrapolates from those results and infers that the number of customers so affected could be as high as 120,000.

However, at point 2 on page 1 of Telstra’s letter 9 April 1994, Telstra writes:

“In relation to point 4, you have agreed to withdraw the reference in the Report to the potential existence of 120,000 COT-type customers and replace it with a reference to the potential existence of “some hundreds” of COT-type customers”.

The fact that on this occasion on 9 April 1994 Telstra (the defendants) were able to pressure the Government Regulator to change their original findings in the formal April 1994 AUSTEL COT Case report is alarming, to say the least. Worse, is that when AUSTEL released it into the public domain the report states AUSTEL only uncovered 50 or more COT-type complaints.

50 COT-type customer AXE complaints in comparison to 120,000 COT-type customer AXE complaints is one hell of a lie told by the government to its citizens who voted them into power.

False Reporting

For a the government regulator to reduce their findings from 120.000 COT type complaints to read just 50 or more COT-type customer complaints is one hell of a lie told to its citizens. Were the governments downplaying of the Ericsson AXE fault complaints part of the overall collusion which involved the purchasing of Lane Telecommunications Pty Ltd who often worked on government contracts?

Because the faulty Ericsson AXE telephone equipment played such an important part in the COT Cases 1994 to 1999 arbitration procedure I have introduced it here along with the selling off of Lane Telecommunications Pty Ltd (the arbitration technical unit) to Ericsson the very corporation it had been commissioned to investigate. during the COT arbitrations.

How can an Australian company like Lane be sold off during an Australian government-endorsed arbitration to a Swedish International telecommunications company it is investigating? If this is not collusion and corruption of the worse possibly kind, then what is?

Australia must be the only country in the Western world that allows a witness (Lane Telecommunications Ptd Ltd) was a witness to what the COT claimants and arbitrator had uncovered against Ericsson to be purchased by the very same company who were officially under investigation. This purchase bought the silence of Lane once the money was in the bank. The career politician again had closed their eyes to this collusion, regardless of how unethical all this had become with one aim in mind to ensure the COT Cases were "stopped at all costs" from proving their arbitration claims (See pages 36 and 38 Senate -Senate - Parliament of Australia).

I believe the Australian government should answer the following questions: How long was Lane Telecommunications in contact with Ericsson, the major supplier of telecommunication equipment to Telstra before Ericsson purchased Lanes? Is there a link between Lane ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process? Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (see Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued?)

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers visit my website absentjustice.com where you can see, yourself, that my claims against Telstra and Ericsson are valid.

Purchasing all of Lane Telecommunications' COT related arbitration files (during the COT arbitrations) was a most significant coup for both Telstra and Ericsson because all of the arbitration technical information Lane had acquired as a witness during the COT arbitrations which were stored in Lane's computer system as well as in hard copy records belonged to Ericsson once they owned Lane.

What the Australian government appears not to have considered when they allowed Lane to be sold off during our government endorsed arbitrations is that Lane had signed a Confidentiality Arbitration Agreement in which each of the COT claimants also signed agreeing under no circumstances, they would disclose to a third party any information they obtained during the COT arbitrations. And here Lane is the main arbitration witness allowed to sell that confidential acquired information to Ericsson, who Lane had been assigned to investigate.

it is on record, that when Lane together with Telstra and me visited the Portland Ericsson AXE telephone exchange and the Cape Bridgewater unmanned switching exchange on 6 April 1995 both Lane and Telstra would not allow me to view the Portland Ericsson AXE log book. It is most important I attach here the following link although dated 1996 all Ericsson exchanges had their own logbooks (see page 20 > http://www.wedophones.com/Manuals/EricssonNotInService/AXE%20Operation%20And%20Maint%. It is also on record that the arbitrator would not access this logbook under the arbitration discovery process. Even the Commonwealth Ombudsman (during my arbitration) tried to acquire this same logbook using my FOI applications but was unsuccessful.

If the hackers mentioned on our webpage  Hacking Julian Assange/Chapter One were Julian Assange and his friend, and it is very likely it was them, then why hasn't the Australian Government understood what the hackers wanted to share with us COT cases? He did not ask for payment in sharing what he and his friends had uncovered concerning Telstra’s ailing copper wire network, as would have been the case if he had been a common criminal. He wanted us to have a fair arbitration hearing, and that was all. Had we used the information on offer, then the arbitrator would have been compelled to demand that Telstra fix its degraded Ericsson exchange equipment, instead of bringing down his findings which did not disclose the true extent of the corroded network that was destroying the COT cases' businesses and numerous other telephone dependent businesses throughout Australia.

This part of the story is of my battle with the first and second Telecommunications Industry Ombudsman and the Australian Government, a battle that has twisted and turned since 10 November 1993, through elected governments, government departments, regulatory bodies, the judiciary and the Australian telecommunications giant, Telstra. This part of the COT story commenced on December 1993 (see TIO Evidence File No 3-A an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00

Why didn't AUSTEL investigate the ELMI Tapes I provided them in August 1993, which were inadvertently left in Telstra's Briefcase on 3 June 1993, which confirmed on 13 October 1992 that Telstra had lied about the ongoing drop-out calls to my business which the ELMI tapes show arrived. Still, Telstra stated the Tapes did not record this activity when the tapes show otherwise. Who within the government communications regulatory office concealed these wrongs by Telstra (see directly below)?

On 13 October 1992, I reported four calls dropping out at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a deadline. Despite the Elmi machines, the Telstra technicians found no faults that they could detect as they had in so many instances before. What was going on?

I raised these Elmi non-connected calls with AUSTEL (as a matter of public interest) twelve months later after I proved to AUSTEL's John MacMahon that Bell Canada International Inc (BCI tests) could not have possibly conducted their testing at the Cape Bridgewater Addendum RCM switching exchange. And here Telstra was again lying about their testing at the Cape Bridgewater RCM switching exchange, this time regarding the failed Elmi testing (see AS11 file AS 1 to 47).

It was two years before I got any elucidation from Telstra, and even then, it shed no light on the matter. In 1994, in a bundle of FOI documents I received was a hand-written file note stating: -

'We had the Elmi disconnected at the RCM and were installing it at Mr Smith's house, and the CCAS showed no evidence of above 1.20, 1.40, 2.00 and 3.00.' (AS11 file AS 1 to 47).

This was simply not the case at all; I knew they were not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later, many documents arrived, including tapes that show that the call drop-outs and dead lines that I had experienced appeared on Telstra's monitoring equipment (CCAS) records as answered calls at approximately 1.30 pm and 3 pm.

I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and installed at my house when these two print-outs show that it was installed and operating at both locations incorrectly. I could only assume that all this reflected the competence and capacity of Telstra's fault centre, as well as the accuracy of their records and reportage. That thought alone was very worrying when you are reliant on the telephone.

And now I began to suspect that there might not be a simple answer to the phone faults, just waiting to be discovered and fixed. It looked as if the problems were endemic throughout the organisation and its infrastructure.

As I struggled from the end of 1992 to the New Year of 1993, I began to wonder if 'settling' with Telstra had been such a good idea. Nothing had changed. I had been forced to re-finance, incurring more set-up fees, and because I still couldn't afford to maintain the Camp properly and the place was looking decidedly abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!

The other COT members were no better off. Maureen and Ann had also accepted settlements directly from Telstra, while Graham had his through the courts. And for each of us, poor and faulty phone service continued unabated.

My only source of strength at this time was from my fellow COT members. One Saturday evening, a couple of Scotches left me in tears of complete frustration. I knew I was easily capable of running the Camp as I pictured it but instead, I was trapped in a vicious cycle. Without customers, I would soon be completely broke, but the customers couldn't reach me because the phones didn't work. Right then, Graham Schorer rang, urging me to hang in there, convinced that we would win out in the end.

Yes, some calls did get through, in what proportion I shall never know, though perhaps the rate is indicated by the following story. In personal desperation, I decided to ring Don Burnard, a clinical psychologist the COT members had contacted when we started creating the group. Dr Burnard had written a report regarding our individual conditions, noting the breakdown in our psychological defences due to the excessive and prolonged pressures we endured:

All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.

I rang Dr Burnard for support, but my conversation with his receptionist was interrupted three times by phone faults. Later I received a letter from his office, saying:

I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call.

Ann Garms and Graham Schorer had, by now, become my comrades in arms in this war we were fighting, and we had many group discussions as we tried to find a way to deal with the evasions and deceptions of Telstra management. But we were simply three small-business people struggling against the might of a huge corporation. Not encouraging odds! We wondered if we could ever be in a position to expose Telstra's unethical corporate strategies and continued and apparently deliberate mishandling of our complaints. And Ann, like myself, had begun to suspect that our phone lines were being bugged. I will return to this later once we were able to provide evidence that our concerns were valid.

Early in 1993, as a spokesperson for COT, Graham Schorer met with Robin Davey, the chairman of Austel (the telecommunications industry regulator), to discuss our way forward. Austel was sympathetic to our situation. It recognised we had been let down in our settlements and sought to establish a standard of service against which Telstra's performance could be objectively measured in any future settlements.

Meanwhile, COT decided it was time to try to inform the Australian Senate of our plight. We sent submission after submission, with supporting FOI documents, and followed through with visits to Canberra, financed from our already depleted pockets, to meet with ministers who were sympathetic to our case.

By now, I had accumulated more than seventy letters from customers who had been unable to reach me by phone. This example, from a Year 7 co-ordinator for Hamilton High School (now Bainbridge College), who brought his group along every February from 1990, is typical:

“I wish to acknowledge in writing the repeated difficulty I have had contacting Alan Smith at the Cape Bridgewater convention centre by telephone. In the week 1st to 5 March, I made 5 or 6 attempted phone calls to Alan but I was unable to get through, indeed the line was 'dead'. This was extremely frustrating and had I not been aware of Alan's phone problems, I would have used another camp site”.

Astonishingly, one letter, dated 17 May 1993, was from a senior Telstra technical engineer, who wrote regarding his own experience of trying to ring me:

“On the 24/2/93, I received a phone call from a technician at Portland who stated he had been given a fault from (1100 fault dept.) indicating a customer in Ballarat had trouble calling your business 055 267 267. I then attempted to ring 055 267 267 myself, the ring was tripped after several bursts, i.e. 'answered', and I received a loud noise similar to a radio carrier noise and a very faint 'Hello'’.

At last, a second person inside Telstra acknowledged that I had a problem with the phone service! The engineer had even given me his name. Yet in the course of their defence of my arbitration claims, Telstra proffered a Witness Statement from this man (made in December 1994) that included no reference to my ongoint telephone problems.

Chapter 3

Legal Professional Privilege

The Firm - John Grisham

It was while all this skulduggery and deception was taking place and Denise McBurnie along with Freehill Hollingdale & Page had drained me of all my reserved energies to keep going, that I remembered the ruthless legal firm portrayed in the 1991 novel The Firm by John Grisham.

Both Telstra’s 14 April 1994 letter, to the Australian Federal Police (AFP), that admits at least one Telstra employee was intercepting my telephone conversations, and my 9 September 1994 response, concerning this unauthorised interception over an extended period, are now stamped “Protected AFP” material. The SENATE official Hansard clearly refers to Telstra’s conduct, stand-over tactics and threats towards the COT cases. The Senate Hansard, AFP transcripts (of conversations with me concerning these threats) and the Commonwealth Ombudsman’s records, all confirm Telstra carried out those threats against; yet neither the arbitrator nor the TIO addressed this during my arbitration. Why has no one ever addressed this unethical conduct publicly? Why is there no record, in the arbitrator’s award, exposing these threats? Why was Telstra allowed to make these threats and commit similar unlawful acts against the COT cases during their arbitrations? Neither the TIO nor arbitrator came to my aid or demanded answers to why a corporation can take control over arbitrations in a government-endorsed process.

Although the Freehill Hollingdale & Page - COT Case Strategy has been raised elswhere on this website it was again important to raise it right through my story because having to register phone complaints to a lawyer in writing brought on not just PSD, it stopped me focussing on what telephone calls that did make it through the minefield of a very congested telephone network.

During this turbulent period where it felt like I was in a dream telephoning a lawyer to explain the previous four incoming calls had just dropped out I felt as though Denise McBurnie was playing a cat and mouse type game with my mind. It is clear from the following pages 36 to 39 Senate - Parliament of Australia that Freehill's had us COT Cases at their mercy. Worse, however, the day before the Senate committee uncovered this COT Case Strategy,

Stop the COT Cases at all cost

The Senate was also told under oath, on 24 June 1997 see:- pages 36 to 39 Senate - Parliament of Australia/from an ex-Telstra employee and then-Whistle-blower, Lindsay White, that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, he advised the Committee that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White - "Can you tell me who, at the induction briefing, said 'stopped at all costs"

Mr White responded by saying - Mr Peter Gamble, Peter Riddle. (See pages 36 to 39 Senate - Parliament of Australia)

Also in the above Senate Hansard on 24 June 1997: (refer to page 76 and 77 Senate - Parliament of Australia Senator Kim Carr states to Telstra’s main arbitration defence Counsel (also a TIO Council Member) Re: Alan Smith:

Senator CARR – “In terms of the cases outstanding, do you still treat people the way that Mr Smith appears to have been treated? Mr Smith claims that, amongst documents returned to him after an FOI request, a discovery was a newspaper clipping reporting upon prosecution in the local magistrate’s court against him for assault. I just wonder what relevance that has. He makes the claim that a newspaper clipping relating to events in the Portland magistrate’s court was part of your files on him”. …

Senator SHACHT – “It does seem odd if someone is collecting files. … It seems that someone thinks that is a useful thing to keep in a file that maybe at some stage can be used against him”.

Senator CARR – “Mr Ward, we have been through this before in regard to the intelligence networks that Telstra has established. Do you use your internal intelligence networks in these CoT cases?” (My emphasis)

The most alarming situation regarding the intelligence networks that Telstra has established in Australia is who within the Telstra Corporation has the correct expertise i.e. government clearance to be able to impartially filter the raw information collected before that information is catalogued for future use? More importantly, when Telstra was fully privatised, which organisation in Australia was given the charter to archive this very sensitive material?

PLEASE NOTE: At the time of my altercation referred to in the above 24 June 1997 Hansard my bankers had already lost patience and had sent the Sheriff to make sure I stayed on my knees. No punches were thrown by me during this altercation with the Sheriff who was about to remove catering equipment from my property, which I needed to keep trading. I actually placed a judo hold ‘Full Nelson’ on this man and walked him out of my office. All charges were dropped by the Magistrates Court on appeal when it became obvious there were two sides to this story.

.The long-term effect of these unethical attacks on the well-being of the COT Cases, i.e., that two have died since the third has dementia. In November 2017, I suffered a heart attack and double bye-pass (living with a pacemaker). Finally, the terrible treatment we COT Cases have endured has taken its toll. I no longer laugh from my belly or tell my favourite seaman's jokes. I survive only for my partner's sake and the need to say to this story.

In January 2018 my partner, Cathy, was with me for my first appointment with our local doctor after I had survived this heart attack and double by-pass surgery. Although the doctor was very sympathetic to my situation (and he knows my COT story) he couldn’t help but ask:  “Why am I not surprised?”

The fabricated BCI report (see Telstra’s Falsified BCI Report and BCI Telstra’s M.D.C Exhibits 1 to 46 is most relevant because it was provided by Telstra's lawyers to Ian Joblin a forensic psychologist who was assigned by Freehill Hollingdale & Page (Telstra's lawyers) to assess my mental state during my arbitration. it is clearly linked to statements made in the following page 5169 SENATE official Hansard – Parliament of Australia concerning Telstra having adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page.

What I did not know, when I first had to register my telephone problems in writing with Denise McBurnie before Telstra would investigate those faults is that this COT Case Strategy was a set up by Telstra and their lawyers to hide all proof that I truly did have ongoing telephone problems affecting the viability of my business.

This continual writing up of individual telephone faults, to these lawyers Freehill Hollingdale & Page, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this fault evidence, I was providing it to Telstra believing this would assist them in locating the problems my business was experiencing.

I was unaware I would later need this evidence for an arbitration process. This arbitration process meant I had to retrieve back, from Telstra under Freedom of Information, the very same documentation I had previously provided this legal firm. Imagine the frustration of knowing that you had already provided the evidence supporting your case but it was now being withheld from you by Telstra and their lawyers.

If this wasn’t soul-destroying enough, imagine learning that lawyer, with who you were being forced to register your phone complaints, devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C). instructing their client Telstra (naming me and my business) on how Telstra could conceal this same type of technical information from me under the guise of Legal Professional Privilege even though the information was not privileged. (see also page 5169 SENATE official Hansard – Parliament of Australia.

These were four of the same names targeted by Denise McBurnie and Freehill Hollingdale & Page in their COT Cases strategy, which had to be stopped from receiving their requested documents under FOI (see Prologue Evidence File 1-A to 1-C)

The fact that the Denise McBurnie - COT Case Strategy was exposed during a combined Senate investigation and the government still denied me compensation or did not order Telstra to supply me my previously withheld documents as they did for the other five litmus tests cases shows how corrupt the Australian government is.

In my case, Telstra had previously refused to address the many phone problems that were affecting the capacity of my businesses, telling them 'No fault found,' when documents on this website show they were found to have existed as the following government communications regularors own AUSTEL’s Adverse Findings shows. Page 5169 in this SENATE official Hansard – Parliament of Australia shows Telstra adopted the Freehill Hollingdale & Page - COT Case Strategy during the COT arbitrations which had been spuriously prepared by Denise McBurnie of Freehill Hollingdale & Page.

Unsigned Witness Statement

When I first received a copy of this legal advice (see Prologue Evidence File 1-A to 1-C) years after the completion of my arbitration it took me back to my arbitration and the 12 September 1994, when I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel so he could analyse my mental health as part of Telstra’s defence of my arbitration claims (see the above Denise McBurnie - COT Case Strategy).

I found the process of being interviewed by a forensic psychologist, in the saloon bar of the local hotel, shockingly uncomfortable and embarrassing, especially when he kept spreading out different cards on the table as part of this clinical, forensic testing process. Was this his idea to unstabilize me during my arbitration or the company that had hired him? However, when this legal firm, which the government assured us would not be used in our arbitrations (see point 40 Prologue Evidence File No/2), provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by this legal firm's lawyer Maurice Wayne Condon, It bore no signature of the psychologist.

Did Maurice Wayne Condon remove or alter any reference to what Ian Joblin had originally written?

On 21 March 1997, twenty-two months after the conclusion of my arbitration, John Pinnock, (the second appointed administrator to my arbitration), wrote to Telstra's Ted Benjamin (see File 596 AS-CAV Exhibits 589 to 647) asking:

1...any explanation for the apparent discrepancy in the attestation of the witness statement of Ian Joblin .

2...were there any changes made to the Joblin statement originally sent to Dr Hughes compared to the signed statement?"

I have never seen a copy of the advice that John Pinnock was officially entitled to receive from Telstra regarding this unsigned arbitration witness statement.

The reason I was asking the TIO to why Ian Joblin's signature was not on the first of Mr Joblin's supplied witness statement is because the first witness statement had paragraphs that did not correspond with the previous statement above it. It appeard as those in two area's of the witness statement Mr Joblin had left out a paragraph of one or two paragraps.

The ending in those to paragraphs which appeared to have stopped half way through the sentence (the folowing words did not flow) back into the previous statement made.

It is also important to highlight the Freehiil's statement noting:

"In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged Denise McBurnie from Freehills to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through Denise for either drafting of the reply from Telecom or for the reply direct from Freehills as our agent.

It goes on to say:

'Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through Freehills with initial acknowledgement by the Region."

I reterate. the government promised us that Freehill Hollingdale & Page would not be used in our arbitrations. On 5th October 1993: Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Ian Campbell, Managing Director, Commercial (AS 927) noting:

"Finally, if the attached letter (Attachment 'D') dated 7 July 1993 from Freehill Hollingdale & Page to one of the COT Cases’ solicitors is indicative of the way that Freehill, Holingdale & Page have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role."

It is most paramount that I discuss here in my story because if the reader is trying to come to grips as to why my issues have not been taken up by a government legal type agency this question can be answered by raising for very important issues raised on page 5169 at point 29, 30, and 31 SENATE official Hansard – Parliament of Australia which note:

29. Whether Telstra was active behind-the-scenes in preventing a proper investigation by the police is not known. What is known is that, at the time, Telstra had representatives of two law firms on its Board—Mr Peter Redlich, a Senior Partner in Holding Redlich, who had been appointed for 5 years from 2 December 1991 and Ms Elizabeth Nosworthy, a partner in Freehill Hollingdale & Page who had also been appointed for 5 years from 2 December 1991.

One of the notes to and forming part of Telstra’s financial statements for the 1993- 94 financial year, indicates that during the year the two law firms supplied legal advice to Telstra totalling $2.7 million, an increase of almost 100 per cent over the previous year. Part of the advice from Freehill Hollingdale & Page was a strategy for "managing" the "Casualties of Telecom" (COT) cases.

30. The Freehill Hollingdale & Page strategy was set out in an issues paper of 11 pages, under cover of a letter dated 10 September 1993 to a Telstra Corporate Solicitor, Mr Ian Row from FH&P lawyer, Ms Denise McBurnie. The letter, headed "COT case strategy" and marked "Confidential," stated: "As requested I now attach the issues paper which we have prepared in relation to Telecom’s management of ‘COT’ cases and customer complaints of that kind. The paper has been prepared by us together with input from Duesburys, drawing on our experience with a number of ‘COT’ cases. . . ."

31. The lawyer’s strategy was set out under four heads: "Profile of a ‘COT’ case" (based on the particulars of four businesses and their principals, named in the paper); "Problems and difficulties with ‘COT’ cases"; "Recommendations for the management of ‘COT’ cases; and "Referral of ‘COT’ cases to independent advisors and experts". The strategy was in essence that no-one should make any admissions and, lawyers should be involved in any dispute that may arise, from beginning to end. "There are numerous advantages to involving independent legal advisers and other experts at an early stage of a claim," wrote Ms McBride . Eleven purported advantages were listed.

What sort of a chance do you think I would have if I lodged any sort of a claim with any level of government in Australia? Do you think I could expect a fair hearing and an unbiased judgement from the Labor Party, or any other Australian organisation with any level of power in relation to what Freehill Hollingdale & Page did back when Ms Elizabeth Nosworthy and Mr Peter Redlich AO were both on the board of Telstra and my business was one of the four that were deliberately singled out by Freehill's to be stopped from getting the documents we needed to support our claims, no matter what the cost might be to achieve that?

Back then, Mr Redlich was, in most people's eyes, one of the finest lawyers that Australia had ever had. A stalwart within the Labor Party, a one-time friend of two Australian Prime Ministers (Gough Whitlam and Bob Hawke) and a long-time friend of Mark Dreyfus, Australia's current Attorney General. Who would be the slightest bit interested in listening to my perspective in relation to someone so highly qualified and with such important friends? Would my situation have even the tiniest chance of being heard in relation to the COT strategy designed by Freehill Hollingdale & Page? After all, in comparison to these so-called highly qualified, revered Aussie citizens, I am just a one-time Ships’ Cook who purchased a holiday camp with a very unreliable phone service although, remember, I am also a legitimate Australian citizen.

It is important to note that during the first week of January 1994, the COTs advised Warwick Smith, the TIO, who was also the administrator of both the Fast Track Settlement Proposal (FTSP) and the Fast Track Arbitration Procedure (FTAP), that AUSTEL’s Chairman, Robin Davey, had also assured the COTs that Freehill’s would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) from Greg Newbold to various Telstra executives (AS 928) notes:

"Steve Lewis (Australian Financial Review news reporter) is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of Freehills."

Later, between January and March 1994, when the COTs again spoke to Warwick Smith concerned that Telstra had now appointed Freehills as their FTAP defence lawyers, the TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though Alan also advised the TIO, in March 1994, that he was still having to register his phone complaints through Freehills and had still not been provided with any of the technical data to support Freehill’s assertions that there was nothing wrong with his telephone/fax service. This was a grave conflict of interest situation.

During and after my arbitration he raised his concerns that the arbitrator had not addressed Freehill’s submission of Telstra witness statements that had only been signed by Freehills and not by those who were actually making the statements. Nothing was transparently done to assist me in this matter other than to send this witness statement back to be signed by the alleged author making the statement.

My appeal lawyer (Law Partners of Melbourne) was not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that had been exchanged between Freehills, Telstra and I was ever provided to me as it should have been according to the rules of discovery. In fact, my lawyer suggested that perhaps Telstra had originally appointed Freehills to be my designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that my ongoing telephone fault evidence could be concealed under Legal Professional Privilege (LPP) during his arbitration.

Telstra’s continued use of Freehills throughout the COT arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under LPP, suggested, at the time, that the arbitrator was not properly qualified as he didn’t seem to understand that Telstra could not legally conceal technical information under LPP.

As this story reveals, Dr Hughes was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then called the Institute of Arbitrators Australia.

19th October 1993: This document from Denise McBurnie (Freehill's) to Telstra's Don Pinel titled Legal Professional Privilege In Confidence FOI folio A06796: includes the following statements:

"Duesbury & FHP continuing of evaluating (blank) claim - final report to Telecom will be privileged and will not be made available to (blank).

Telecom preparing report for FHP analysing data available on (blank) services ie. (CCAS, Leopard, CABS and file notes) – this report will be privileged and will not be made available to (blank)." (AS 930)

In other words, Telstra FOI documents (folio R00524 and A06796) confirm Telstra were already hiding technical information from the COT claimants under Legal Professional Privilege. It is important to note here that Telstra had directed me to register my 'ongoing' telephone faults, in writing, to Denise McBurnie of Freehills in order to have those issues addressed. I found this not just time consuming, but also very frustrating, because by the time he received a response to one complaint he already had further complaints to register. It wasn’t until I entered the arbitration process that it appeared as though Telstra were using Freehills’ Legal Professional Privilege strategy to hide numerous important technical documents from the claimants, including the very same 008/1800 fault complaints that I had registered through Freehills, according to Telstra’s directions.

29th October 1993: this Telstra FOI document folio K01489 Exhibit (AS 767-A) notes

"During testing the Mitsubishi fax machine, some alarming patterns of behaviour were noted, these affecting both transmission and reception. Even on calls that were not tampered with the fax machine displayed signs of locking up and behaving in a manner not in accordance with the relevant CCITT Group 3 fax rules."

The hand-written note in the bottom right corner of Exhibit AS 767-B, which states: “Stored in Fax Stream?” suggests that faxes intercepted via Telstra’s testing process are stored in Telstra's Fax Stream service centre so the document can be read, at any time, by anyone with access to Telstra’s fax stream centre. The Scandrett & Associates report proves that numerous COT arbitration documentation was definitely intercepted, including faxes travelling to and from Parliament House, the Commonwealth Ombudsman’s Office (COO) and the COTs and, in my case at least, that this interception continued for seven years after his arbitration was over. This means, in turn, that Telstra had free access to in-confidence documents that the claimants believed they were sending ONLY to their accountants, lawyers and/or technical advisors (as well as Parliament House and the COO), and those documents could well have included information that the claimants might not have wanted disclosed to the defendants at the time

Was the engineer pressured to stay quiet during my arbitration? I don't know. Certainly, not all Telstra engineers or technicians treated COT complaints in good faith. Another Telstra technician, who experienced major problems during his official fax testing process on 29 October 1993, nevertheless advised the arbitrator that I had no problems with that service, even though the Telstra document that discusses these faults notes:

In a similar incident, an FOI document regarding a complaint I lodged about my own phone service bears a hand-written note which states: 'No need to investigate, spoke with Bruce, he said not to investigate also.'

Where was this attitude coming from? If from higher management, it seems an odd way to do business: exacerbating our problems so that we would only complain more.

In the first five months of 1993, I received another eleven written complaints, including letters from the Children's Hospital and the Prahran Secondary College in Melbourne. The faults had now plagued my business, unabated, from April 1988 to mid-1993.

By now, due to COT's pressure in Canberra, a number of politicians had become interested in our situation. The question was, would these politicians actually take any action on our behalf, or would they protect the 'milking cow' of the Telstra corporation?

In June 1993, the Shadow Minister for Communications, the Hon. Senator Richard Alston was showing an interest. He and Senator Ron Boswell of the National Party both pushed for a Senate Inquiry into our claims and, an ex-Telstra employee recently told me they were very close to pulling it off. If this Senate Inquiry had got off the ground, heads in Telstra might have rolled, but this didn't happen, and those same 'heads' continue to control Telstra to this day.

Even though Senator Boswell is based in Queensland and most of the remaining members of COT are in Victoria, he has continued to offer his support. David Hawker MP, my local parliamentary member, was another who saw his 'duty of care to his constituents and so answered our call for help. He took my claims seriously — indeed, he took the problem of poor phone service in his electorate seriously and was appalled at its extent. Mr Hawker sent me letters of support, put relevant people in touch with me, organised assistance for me, and has continued to go into battle on COT's behalf for ten years now.

Non-connecting calls

While the politicians tried to launch a Senate Enquiry, COT continued to lobby Austel for assistance. Yet another telephone issue was affecting my business. In February 1993, I installed an 1800 free call number to encourage telephone business and experienced problems right from the start. Many calls to this number were not connecting; the caller heard only silence on the line and typically hung up. The business was potentially losing a client, but adding insult to injury, I was charged for these non-connecting calls. Even worse, in many instances, the caller heard a recorded announcement from Telstra to the effect that the number wasn't connected. I first knew this problem was occurring through people reporting their difficulties trying to reach me. After this, I checked my bills carefully.

According to Telstra's policy, customers are charged only for calls that are answered. Unanswered calls are not charged and include:

… calls encountering engaged numbers (busy), various Telstra tones and recorded voice announcements as well as calls which 'ring out' or are terminated before or during ringing.

Between February and June 1993, I provided Austel with evidence of erroneous charging on unanswered calls on my 1800 service (in fact, it went on for at least another three years after that). John MacMahon, General Manager of Consumer Affairs at Austel, wanted a record of all non-connected calls and RVAs that were being charged to my 1800 account. In order to provide that, I needed the data from my local exchange.

Both Austel and the Commonwealth Ombudsman's Office were aware that I made repeated requests of Telstra, under the rules of FOI, to provide me with the relevant data. Yet, despite the involvement of these institutions, Telstra held out on me. In the end, it was more than a decade later that I received any of the relevant information, and that was through Austel. And, of course, it was too late by then. The statute of limitations on the matter had long expired.

I did not understand then, nor do I understand why Austel, as the government regulator of the telecommunications industry, could not demand that data from Telstra.

From June 1993, I had proof that Telstra knew the faulty billing in the 1800 system was a network problem from its inception.

The Briefcase

Ericsson AXE faulty telephone exchange equipment (1)

I should have known better. It was just another case of 'No fault found.' We spent some considerable time 'dancing around' a summary of my phone problems. Their best advice for me was to keep doing exactly what I had been doing since 1989, keeping a record of all my phone faults. I could have wept. Finally, they left.

A little while later, in my office, I found that Aladdin had left behind his treasures: the Briefcase Saga was about to unfold.

Aladdin

The briefcase was not locked, and I opened it to find out it belonged to Mr Macintosh. There was no phone number, so I was obliged to wait for business hours the next day to track him down. However, what there was in the briefcase was a file titled 'SMITH, CAPE BRIDGEWATER'. After five gruelling years fighting the evasive monolith of Telstra, being told various lies along the way, here was possibly the truth, from an inside perspective.

The first thing that rang alarm bells was a document that revealed Telstra knew that the RVA fault they recorded in March 1992 had actually lasted for at least eight months — not the three weeks that was the basis of their settlement payout. Dated 24/7/92, and with my phone number in the top right corner, the document referred to my complaint that people ringing me get an RVA' service disconnected' message with the 'latest report' dated 22/7/92 from Station Pier in Melbourne and a 'similar fault reported' on 17/03/92. The final sentence reads: 'Network investigation should have been brought in as fault has gone on for 8 months.'

I copied this and some other documents from the file on my fax machine and faxed copies to Graham Schorer. The next morning I telephoned the local Telstra office, and someone came out and picked the briefcase up.

The information in this document dated 24 July 1992 was proof that senior Telstra management had deceived and misled me during previous negotiations. It showed that their guarantees that my phone system was up to network standard were made in full knowledge that it was nowhere near 'up to standard'.

It is noted that Telstra's area general manager was fully aware at the time of my settlement on 11 December 1992 that she was providing me with incorrect information. This information had influenced my judgement of the situation, placing me at a commercial disadvantage, but the General Manager, Commercial Victoria/Tasmania, was also aware of this deception.

The use of misleading and deceptive conduct in a commercial settlement such as mine contravenes Section 52 of the Australian Trade Practices Act. Yet this deception has never been officially addressed by any regulatory body. To get ahead of my story here, even the arbitrator who handed down his award on my case in May 1995 failed to question Telstra's unethical behaviour.

Chapter 5 Manipulating the Regulator

Previously Withheld Documents

I took this new information to Austel and provided them several documents that had previously been withheld from me during my 11 December 1992 settlement which had been in the brifcase. On 9 June 1993, Austel's John MacMahon wrote to Telstra regarding my continuing phone faults after the settlement and the content of the briefcase documents:

Further he claims that the Telecom documents contain network investigation findings which are distinctly different from the advice which Telecom has given to the customers concerned.

In Summary, these allegations, if true, would suggest that in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information.

I ask for your urgent comment on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation, which was apparently inadvertently left at Mr Smith's premises for its inspection. This, together with your comment, will enable me to arrive at an appropriate recommendation for AUSTEL's consideration of any action it should take.

As to Mr Smith's claimed continuing service difficulties, please provide a statement as to whether Telecom believes that Mr Smith has been provided with a telephone service of normal network standard since the settlement. If not, you are asked to detail the problems which Telecom knows to exist, indicate how far beyond network standards they are and identify the cause/causes of these problems.

In light of Mr Smith's claims of continuing service difficulties, I will be seeking to determine with you a mechanism that will allow an objective measurement of any such difficulties to be made.

I can only presume that Telstra did not comply with the request 'to immediately provide AUSTEL with a copy of all the available documentation which was apparently inadvertently left at Mr Smith's premises,' on 3 August 1993. Austel's General Manager, Consumer Affairs, wrote to Telstra requesting a copy of all the documents in this briefcase that had not already been forwarded to Austel.

I sent off a number of Statutory Declarations to Austel explaining what I had seen in the briefcase.Telstra had returned and picked up the briefcase.

One-third of documents which I managed to copy was enough information to convince AUSTEL that Ericsson and Telstra were fully aware the AXE Ericsson lock-up faults was a problem worldwide affecting 15 to 50 percent of all calles generate through this AXE exchange equipment. It was locking up flaws affected the billing software.

Thousands upon thousands of Telstra customers Australia wide had been wrongly billed since the instalation of this Ericsson AXE equipment which in my case, had been installed in August 1991, with the problems still apparent in 2002. Tther countries around the world were removing or had removed it from their exchanges (see File 10-B Evidence File No/10-A to 10-f ), and Australia was still denying to the arbitrator there was ever a problem with that equipment. Lies told by Telstra so as to minmize their liability to the COT Cases. (See Files 6 to 9 AXE Evidence File 1 to 9)

Was this the real reason why the Australian government allowed Ericsson to purchase Lane during the government endorsed COT arbitration while the arbitrations were still in progress?

When the COT arbitration documents submitted into arbitration proved that this Ericsson AXE lock-up call loss rate was between from 15% to 50% as File 10-B Evidence File No/10-A to 10-f so clearly shows. AUSTEL then instigated an investigation into these AXE exchange faults and uncovered some 120,000 COT-type complaints were being experienced around Australia. Exhibit (Introduction File No/8-A to 8-C), shows AUSTEL's Chairman Robin Davey received a letter from Telstra's Group General Manager (who was also Telstra's main arbitration defence liaison officer), suggesting he alter that finding for 120,000 COT-type complaints to show a hundred. If fact when the public AUSTEL COT Cases report was launched on 13 April 1994, it shown AUSTEL located up-wards of 50 or more COT-type complaints being experienced around Australia.

Was this the major problem Julian Assange wanted to share with the COT Cases? He said corruption was significant. How bigger could this have been had it been exposed during the COT arbitrations?

In my case, none of the relevant arbitration claims raised against Ericsson, whose official arbitration records numbered A56132, were investigated, including my Telstra's Falsified SVT Report. Why did Lane ignore this evidence against Ericsson?

Even worse was when my arbitration claim documents were returned to me after the conclusion of the arbitration NONE of my Ericsson technical data was amongst the returned material.

I believe the Australian government should answer the following questions: How long was Lane Telecommunications Pty Ltd in contact with Ericsson, the major supplier of telecommunication equipment to Telstra before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lane by Ericsson during the COT arbitration process?

Is there a sinister link between the government communications media regulator ACMA denying me access to the Ericsson AXE documentation which I lawfully tried to gain access to during my two government Administrative Appeal Tribunal hearings in 2008 and 2011 (see Chapter 9 - The ninth remedy pursued and Chapter 12 - The twelfth remedy pursued).

The latest 2019/2020 5G Ericsson partnership with Telstra is relevant to all Australian Telstra subscribers; however, it is also relevant that the same subscribers if they were to visit this website absentjustice.com where you can see, yourself, that my claims against Telstra and Ericsson are valid (see Bribery and Corruption - Part 2).

Therefore, it is important to highlight the Ericsson here the bribery and corruption issues the US Department of Justice raised against Ericsson as discussed above in the Australian media reports on 19 December 2019

On 27 August 1993, Telstra's Corporate Secretary, Jim Holmes, wrote to me about the contents of the briefcase:

Although there is nothing in these documents to cause Telstra any concern in respect of your case, the documents remain Telstra's property. They, therefore, are confidential to us … I would appreciate it if you could return any documents from the briefcase still in your possession as soon as possible.

How blithely he omitted any reference to vital evidence which was withheld from me during their negotiations with me regarding compensation.

Flogging a dead horse

By the middle of 1993, people were becoming interested in what they heard about our battle. A number of articles had appeared in my local newspaper, and interstate gossip about the COT group was growing. In June, Julian Cress from Channel Nine's 'Sixty Minutes' faxed me:

Just a note to let you know that I had some trouble getting through to you on the phone last Thursday. Pretty ironic, considering that I was trying to contact you to discuss your phone problems.

The problem occurred at about 11 am. On the 008 number I heard a recorded message advising me that 008 was not available from my phone and your direct line was constantly engaged.

Pretty ironic, all right!

A special feature in the Melbourne Age gave my new 'Country Get-A-Ways' program a great write-up. It was marketing weekend holidays for over-40s singles in Victoria and South Australia: an outdoor canoe weekend, a walking and river cruise along the Glenelg River and a Saturday Dress-up Dinner Dance with a disco as well as a trip to the Coonawarra Wineries in South Australia with a Saturday morning shopping tour to Mt Gambier. I began to feel things were looking up for the Camp.

It was too much to hope for that my telephone saga was coming to an end. A fax arrived on the 26 October 1993, from Cathine, a relative of the Age journalist who wrote the feature:

Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.

Cathine had been ringing on my 1800 free-call line. I had been in my office and there had been no calls at all between 12.30 and 2.45 that day. What was going on? (Telstra's data for that day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed. That day shows one call at 12:01, lasting for 6 minutes and another at 12:18, lasting for 8 minutes). I cannot express how frustrating this was; there seemed to be no end to it in sight. But I was determined not to let the bastards get me down. Their lies and incompetence had to be exposed.

I stepped up my marketing of the Camp and the singles weekends, with personal visits to social clubs around the Melbourne metropolitan area and in Ballarat and Warrnambool. I followed with ads in local newspapers in metropolitan areas around Melbourne and in many of the large regional centres around Victoria and South Australia. I also placed ads for the Get-Away holidays in the 1993 White Pages — or rather, I tried to: the entries never made it into the telephone books. I complained of this to the TIO (the Telecommunications Industry Ombudsman), who attempted to extract from Telstra an explanation for my advertisements being left out of 18 major phone directories.

As the Deputy TIO said in his letter to me of 29/3/96, he believed his office would simply 'be flogging a dead horse trying to extract more' from Telstra on this matter. (In fact, the TIO is an industry body supervised by a board, the members of which are drawn from the leading communications companies in the country: Vodaphone, Optus and, of course, Telstra.)

Between May and October of 1993, in response to my request for feedback, I received many letters from schools, clubs and singles clubs, writing of the difficulties they had experienced trying to contact the Camp by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their Resource Guide, which I had advertised, had been directly mailed to schools and given away. Mr MacDowall had said the other advertisers with ads similar to mine had experienced an increase in inquiries and bookings after distributing these books. So it seemed evident to him that the 'malfunction of your phone system effectively deprived you of similar gains in business.' He also noted that he had himself received complaints from people asking why I was not answering my phone. All in all, during this period, I received 36 letters from different individuals as well more than 40 other complaints from people who had tried, unsuccessfully, to respond to my advertisements. The Hadden & District Community House wrote in April 1993:

Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number.

Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year's family camp, over a six month period during 1991/1992.

In August 1993 Rita Espinoza from the Chilean Social Club wrote:

I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on 10 August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra.

Do you remember the same problem happened in April and May of this year?

I apologise but I have made arrangements with another camp.

A testing situation

Late in 1993, a Mrs Cullen from Daylesford Community House informed me that she had tried unsuccessfully to phone me on 17 August 1993 at 5.17, 5.18, 5.19 and 5.20 pm, each time reaching a deadline. She had reported the fault to Telstra's Fault Centre in Bendigo on 1100, speaking to an operator who identified herself as Tina. Tina then rang my 1800 number, and she couldn't get through either. Telstra's hand-written memo, dated 17 August 1993, records the times Mrs Cullen tried to get through to my phone and reports Tina's failed attempt to contact me.

A copy of my itemised 1800 account shows that I was charged for all four of these calls, even though Mrs Cullen never reached me. All this information was duly passed to John MacMahon of Austel and, soon afterwards, Telstra at last arranged for tests on my line. These were to be carried out from a number of different locations around Victoria and New South Wales. Telstra notified Austel that some 100 test calls would take place on 18 August 1993 to my 1800 free-call service.

First thing that morning I answered two calls from Telstra Commercial, one lasting six minutes and another lasting eleven minutes, as they set up in readiness for the test calls expected that day. Over the rest of that day, there were another eight, perhaps nine calls from Telstra, which I answered. My 1800 phone account arrived, showing more than 60 calls charged to my service some days later. I queried this with Telstra, asking first how I could be charged for so many calls which did not ring, and next, why I should be paying for test calls anyway. In hindsight, I should have asked how more than 60 calls could have been answered in just 54 minutes when the statement shows that some of these calls came through at the rate of as many as three a minute.

Telstra wrote to Austel's John MacMahon on 8 November 1993, informing him that I had acknowledged answering a 'large number of calls' and that all the evidence indicated that 'someone at the premises answered the calls.' Austel asked for the name of the Telstra employee who made these so-called successful calls to my business, and I have also asked for this information, but Telstra didn't respond.

Then on 28 January 1994, I received a letter from Telstra's solicitors in which they referred to 'malicious call trace equipment' Telstra had placed — without my knowledge or consent — on my service between 26 May and 19 August 1993. This was the first I'd heard of it. This device, they explained, apparently caused a 90-second lock-up on my line after a call was answered, meaning that no further call could come into my phone for 90 seconds after I hung up.

This information put another complexity on the matter of those four calls from Mrs Cullen I was charged for in the space of a single 28 seconds and the 100 test calls from Telstra. Even supposing I could answer the phone at such a fast rate, the malicious call tracing equipment, apparently attached to my line at that time, was imposing its 90-second delay between calls, making the majority of these calls impossible. Telstra management, of course, had nothing to say about this.

What was going on? As far as I could tell, most of those 100 test calls simply weren't made; indeed, they couldn't have been made.

Late in 1994, I received two FOI documents concerning these calls. K03433 and K03434 showed 44 calls, numbered between 8 and 63, to the Cape Bridgewater exchange, nine of which had tick or arrow marks beside them. More than once, I asked Telstra what the marks represent but received no response. However, I presume that a technician made these marks against the calls I actually received and answered. A note on K03434 read:

Test calls unsuccessful. Did not hear STD pips on any calls to test no. The TCTDI would not work correctly on the CBWEX (Cape Bridgewater Exchange). I gave up tests.

The technicians themselves gave up on their testing procedure! The second series of tests conducted a year later in March 1994 fared little better. Telstra's fault data notes that only 50 out of 100 test calls were successfully connected. This information was of no use to me at the time, however, as it was withheld from me until September 1997. All I was to hear in 1994 was the old refrain: 'No fault found.'

Only one official document drew attention to the incapacity of Telstra's testing regime, and this was the Austel Draft Report regarding the COT cases, dated 3 March 1994, which concluded:

Cape Bridgewater Holiday Camp has a history of services difficulties dating back to 1988. Although most of the documentation dates from 1991, it is apparent that the Camp has had ongoing service difficulties for the past six years, which has impacted on its business operations, causing losses and erosion of the customer base.

In view of the continuing nature of the fault reports and the level of testing undertaken by Telecom doubts are raised on the capability of the testing regime to locate the causes of faults being reported.

I believe you are taking the most appropriate course of action

I have never received a written response from BCI, but the Canadian government ministers’ office wrote back on 7 July 1995 noting:

"In view of the facts of this situation, as I understand them, I believe you are taking the most appropriate course of action in contacting BCI directly with respect to the alleged errors in their test report., should you feel that they could assist you in your case."

It is also clear from Exhibit 8 dated 11 August 1995 (see BCI Telstra’s M.D.C Exhibits 1 to 46 a letter from BCI to Telstra;s Steve Black and Exhibit 36 on (see BCI Telstra’s M.D.C Exhibits 1 to 46 a further letter from BCI to Telstra's John Armstrong that neither letter is on a BCI letter head, as are Exhibits 1 to 7, from BCI to Telstra (see BCI Telstra’s M.D.C Exhibits 1 to 46.

Both Exhibits 8 and 36 were provided by Telstra to the Senate Committee in October 1997, to support that BCI Cape Bridgewater tests were genuine when the evidence on absentjustice.com and Telstra's Falsified BCI Report confirms it is not.

Telstra has been relying on government ministers to ignore this fraud which the government has done for the past two decades or more.

As far as Telstra's Simone Semmens stating on Nationwide TV (see above) that the Bell Canada International Inc (BCI) test conducted at the COT Cases telephone exchanges that serviced their business proved there were no systemic billing problems in Telstra's network does not coincide with the evidence attached to my website absentjustice.com or the public statement made by Frank Blount. The latter was Telstra's CEO during my arbitration. In 2000 in his co-produced manuscript.

On pages 132 and 133 in publication Managing in Australia (See File 122-i - CAV Exhibit 92 to 127) Frank Blounts reveaks Telstra did have a systemic 1800 billing problem affecting Australian consumers accross Australia. These were the same 1800 billing problems the arbitrator Dr Gordon Hughes would not allow his two technical consultants DMR (Canada) and Lane (Australia) to investigate (see Chapter 1 - The collusion continues).

Had Dr Hughes given DMR & Lane the extra weeks they stated in their 30 April 1995 report was needed to investigate these ongoing 1800 faults (see Chapter 1 - The collusion continues) DMR & Lane would have uncovered what Frank Blount had uncovered. For Telstra to have mislead and deceivied  the arbitrator concerning these 1800 faults is one thing, but to mislead and devieve their 1800 customers is another issue in deed.

The following link Evidence - C A V Part 1, 2 and 3 -Chapter 4 - Fast Track Arbitration Procedure confirms Frank Blount, Telstra’s CEO, after leaving Telstra in he co-published a manuscript in 2. entitled, Managing in Australia. On pages 132 and 133, when discussing these 1800 network faults the author/editor writes exposes :

“Blount was shocked, but his anxiety level continued to rise when he discovered this wasn’t an isolated problem.

The picture that emerged made it crystal clear that performance was sub-standard.” (See File 122-i - CAV Exhibit 92 to 127)

Frank Blount's Managing Australia https://www.qbd.com.au › managing-in-australia › can still be purchased online.

The fact that Telstra allowed Simone Semmens to state on Nationwide TV that the Bell Canada International Inc (BCI) test proved there were no systemic billing problems in Telstra's network during the four years of the COT arbitrations is bad enough, but to have said it when there were other legal processes being administered where the billing was an issue is deception of the worse possible kind, especially after Senator Schacht, advised Telstra's Mr Benjamin of his concerns regarding Simone Semmen's statement inferring Telstra's network was of world statdard when both Telstra and BCI knew different.

Telstra’s Mr Benjamin's statement to Senator Schacht — "...I am not aware of that particular statement by Simone Semmens, but I think that would be a reasonable conclusion from the Bell Canada report,'' is also misleading and deceptive because I had already provided Mr Bejamin (see AS-CAV Exhibit 181 to 233 - AS-CAV 196, AS-CAV 188,  AS-CAV 189 and AS-CAV 190-A), with the proof the Cape Bridgewater BCI tests were fundamentally flawed.

Senator Schacht' s further statement — since then of course—not in conversations but elsewhere— we now have major litigation running into hundreds of millions of dollars between various service providers and so on which are complaints about the billing system. Does that indicate that she may have been partly wrong?

Wrong or not, we know that several of those business owners who made those complaints lost their court actions and their businesses.

FIVE YEARS ON

Telstra in contempt of the Senate

On 23 March 1999, almost five years after most of the arbitrations had been concluded, the Australian Financial Review (newspaper) reported on the conclusion of the Senate estimates committee hearing into why the COT Cases were forced into a government-endorsed arbitration without the necessary documents they needed to fully support their claims i.e.

“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They have defied the Senate working party. Their conduct is to act as a law unto themselves.”

I doubt there are many countries in the Western world governed by the rule of law, as Australia purports to be, that would allow a group of small-business operators to be forced to proceed with a government-endorsed arbitration while allowing the defence (the government which owned the corporation) to conceal the necessary documents these civilians needed to support their claims. Three of those previously withheld documents confirm Telstra was fully aware that the Cape Bridgewater Bell Canada Internations Inc (BCI) tests could not possibly have taken place according to the official BCI report Telstra used as arbitration defence documents.

On my behalf, Mr Schorer (COT. Spokesperson) raised the Cape Bridgewater BCI deficient tests with Senators Ron Boswell and Chris Schacht. Pages 108-9 of Senate Hansard records (refer to Scrooge - exhibit 35) confirm Telstra deflected the issue of impracticable tests by stating my claim – that the report was fabricated – was incorrect. The only problem with the report was an incorrect date for one of the tests. The Senate then put Telstra on notice to provide evidence of that error.

If the 12 January 1998 letter to Sue Laver, with the false BCI information attached is not enough evidence to convince the Australian Government that Telstra cannot continue pretending. They know nothing about the falsified Cape Bridgewater BCI tests, Telstra, and the Senate estimates committee chair was again notified, on 14 April 1998, that the Cape Bridgewater BCI tests were impracticable. When is Telstra going to come forward and advise the Telstra board that my claims are right and that indeed it was unlawful to use the Cape Bridgewater BCI tests as arbitration defence documents as well as grossly unethical to have provided the Senate with this known false information when answering questions on notice?

On pages 23-8 of this letter, and using the Cape Bridgewater statistics material, Graham provided clear evidence to Sue Laver and the chair of the Senate legislation committee that the information Telstra provided to questions raised by the Senate on notice, in September and October 1997, was false (see Scrooge - exhibit 62-Part One and exhibit 62-Part-Two). Telstra was in contempt of the Senate. No one yet within Telstra has been brought to account for supplying false Cape Bridgewater BCI results to the Senate. Had Telstra not supplied this false information to the Senate, the Senate would have addressed all the BCI matters I now raise on absentjustice.com in 2021.

Telstra’s Falsified BCI Report’  is all the evidence necessary to show that arbitration lawyers provided false information to Telstra’s arbitration witness, namely the clinical psychologist, during my government-endorsed arbitration, and two years later, Telstra supplied that same BCI false information on notice to the Senate.

It is ironic that two Telstra technicians, in two separate witness statements dated 8 and 12 December 1994, discuss the testing equipment used by Telstra in overall maintenance and state that the nearest telephone exchange, to Portland and Cape Bridgewater, that could facilitate the TEKELEC CCS7 equipment was in Warrnambool 110 kilometres from Portland/Cape Bridgewater, where BCI alleged they carried out their PORTLAND / Cape Bridgewater tests via the Ericsson AXE exchanges trunked through the TEKELEC CCS7 equipment.

I have shown throughout this webpage absentjustice.com, including in the Brief Ericsson Introduction⟶ that in several cases such as Cape Bridgewater (where I tried to run my telephone dependent business), Ericsson telephone equipment was known to affect the telephone equipment that serviced my business. And yet Telstra was still prepared the lie and cheat in the arbitration defence of my claim as well as during a Senate Estimates investigation into my Ericsson AXE BCI claims.

On 12 January 1998, during the Senate estimates committee investigations into COT FOI issues, Graham Schorer provided Sue Laver (now in 2021) Telstra’s corporate secretary with several documents. On page 12 of his letter, Graham states:

“Enclosed are the 168 listings extracted from Telstra’s Directory of Network Products and Network Operations, plus CoT’s written explanation, which alleges to prove that parts of the November 1993 Bell Canada International The report is fabricated or falsified.”

Had the Senate been advised by Sue Laver there was merit in my complaints concerning the flawed BCI testing, my matters raised on absentjustice.com could have been resolved two decades ago.

Please click on the following link Telstra’s Falsified BCI Report and form your own opinion as to the authenticity of the BCI report which was used by Telstra as an arbitration defence document?

The evidence which supports the report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

On 23 October 1997, the office of Senator Schacht, Shadow Minister for Communications, faxed Senator Ron Boswell the proposed terms of reference for the Senate working party for their investigation into the COT arbitration FOI issues which Sue Laver,. Telstra's current Corporate Secretary in 2001, was heavily involved in these Senate hearings on behalf of Telstra. This document shows the two lists of unresolved COT cases with FOI issues to be investigated. My name appears on the Schedule B list (see Arbitrator File No 67). Telstra, by still refusing to supply these 16 COT cases with promised discovery documents, first requested four years earlier, was acting outside of the rule of law and yet, regardless of Telstra breaking the law, these 16 claimants received no help from the police, arbitrator or government bureaucrats and were denied access to their documents, as absentjustice.com shows.

Exhibit 20-A, a letter dated 9 December 1993 from Cliff Mathieson of AUSTEL to Telstra’s Manager of Business Commercial, states on page 3, "...In summary, having regard to the above, I am of the opinion that the BCI report should not be made available to the assessor(s) nominated for the COT Cases without a copy of this letter being attached to it."

Had this letter and the many other letters in BCI Telstra’s M.D.C Exhibits 1 to 46 been provided to the senate as part of Telstra's response to questions placed on notice concerning my claims the BCI Cape Bridgewater tests were impracticable the Senate might well have demanded more information regarding my claims. This BCI 9 December 1993 letter is also discussed in the introduction to My story-warts and all as follows:

After my arbitration was concluded, I alerted Mr Tuckwell that Telstra had used these known corrupt Bell Canada International Inc (BCI) Cape Bridgewater tests to support their arbitration defence my claims without AUSTEL's letter being supplied to the arbitrator (see Telstra's Falsified BCI Report).

“The tests to which you refer were neither arranged nor carried out by AUSTEL. Questions relating to the conduct of the test should be referred to those who carried them out or claim to have carried them out.” File 186 - AS-CAV Exhibit 181 to 233

If Neil Tuckwell (on behalf of the government communications regulator) had demanded answers back in 1995 as to why Telstra used known falsified BCI tests, this falsifying of arbitration defence documents would have been dealt with in 1995 instead of still actively being covered up in 2022.

I reiterate, by clicking onto the following link Telstra’s Falsified BCI Report you can form your own opinion as to the authenticity of the BCI report and/or my version that clearly shows the Cape Bridgewater test was impracticable.

The evidence (46 exhibits) which support my report is attached as BCI Telstra’s M.D.C Exhibits 1 to 46

COT is partly vindicated by audit

For all its faults, Austel pressured Telstra to commission an audit of its fault handling procedures. Telstra engaged the international audit company of Coopers & Lybrand to report on its dealings with complaints like those raised by COT members. Coopers & Lybrand’s report conveys serious concern at the evidence we presented of Telstra’s unethical management of our complaints.

The Coopers report did not go down well with Telstra. The Group Managing Director of Telstra wrote to the Commercial Manager Refer to Chapter 6 Bad Bureaucrats:

… it should be pointed out to Coopers and Lybrand that unless this report is withdrawn and revised, that their future in relation to Telstra may be irreparably damaged.

These are strong words from the most senior manager below the CEO of a corporation that had a monopoly on the telecommunications industry in Australia. Austel tabled the Coopers & Lybrand report in the Senate, but with some significant changes to what had appeared in the draft report. Regardless of those changes, Coopers were still damning in their assessment to what had happened to the COT Cases.

The following points are taken directly from the Coopers & Lybrand report:

2.20     Some customers were put under a degree of pressure to agree to sign settlements which, in our view, goes beyond normal accepted fair commercial practices.

2.22     Telstra placed an unreasonable burden on difficult network fault cases to provide evidence to substantiate claims where all telephone fault information that could reasonably determine loss should have been held by Telstra.

(2)        Fault handling procedures were deficient in terms of escalation criteria and procedures, and there is evidence that in some cases at least, this delayed resolution of these cases.

3.5       We could find no evidence that faults discovered by Telstra staff which could affect customers are communicated to the staff at business service centres who have responsibility for responding to customers’ fault reports.

We COT four at last felt vindicated; we were no longer alone in claiming that Telstra really did have a case to answer.

A Fast Track (Commercial Assessment) Settlement Process

To summarise. Senators Alston and Boswell had taken up COT’s cases with Telstra and Austel in August 1993, saying that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to cooperate, and Austel was authorised to make an official investigation into our claims.

As a result of their investigation, Austel concluded that there were indeed problems in the Telstra network and that the COT four had been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing, had won a significant battle. Sometimes, we thought, David wins over Goliath, even in the twentieth century.

Because we were all in such difficult financial positions, Austel’s chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to arrive at a value for our claims. These claims had already been found generally to be valid in Austel’s Report, The COT Cases: Austel’s Findings and Recommendations, April 1994 (public report) and it only remained for an assessor to determine an appropriate settlement based on the detailed quantification of our losses.

This ‘Fast Track Settlement Process’ was to be run on strictly non-legal lines. This meant we were not to be burdened with providing proof to support all of our assumptions, and we would be given the benefit of the doubt in quantifying our losses. This was the process Austel specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible.

Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last we began to feel we were getting somewhere. Robin Davey also assured us that any costs we might incur in preparing our claims would be considered as part of our losses, so long as our claims were proved. However, he would not confirm this assurance in writing because, he explained, it could set an unwanted precedent.

Telstra was anxious about setting precedents. On 18 November 1993, Telstra’s Corporate Secretary had written to Mr Davey pointing out that:

… only the COT four are to be commercially assessed by an assessor.

For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments.

To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.

In effect, we four COT members were given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time Austel was dealing with another dozen or so COT cases. We four were being ‘rewarded’ for the efforts we had made over such a long period of suffering business losses. On the other hand, we were also being pressured by this rush — we would lose the option for a commercial assessment if we didn’t sign by 23 November, a mere five days away. The problem was, we were reliant on the supporting documents we needed for our claims. For these we were dependent on Telstra’s good will, and their track record gave us no confidence in that. We were also concerned about the lack of written assurance regarding compensation for preparational and other expenses.

On 22 November we turned for advice to Senator Alston, Shadow Minister for Communications. His secretary, Fiona, sent him an internal memo headed ‘Fast Track Proposal’, in which she conveyed our concerns:

Garms and Schorer want losses in Clause 2(c) to include its definition, ‘consequential loss arising from faults or problems’ although Davey verbally claims that consequential losses is implied in the word ‘losses’ of which he has given a verbal guarantee he will not commit this guarantee to writing.

COT members are sceptical of Davey’s guarantee given that he will not commit it to writing. On top of this, COT alleges that Telstra, in the past, has not honoured its verbal guarantees and so does not completely trust Davey.

COT want your advice whether or not COT should demand that clause 2(c) include a broader definition of losses to include consequential losses.

COT was hoping for your advice by tomorrow.

There was no response from Senator Alston.

Graham, Ann, Maureen and I signed the FTSP the following day, hoping we could trust Robin Davey’s verbal assurances that consequential losses would be included and that Telstra would abide by their agreement to provide the necessary documents. I included a letter with the agreement, clearly putting my expectations of the process:

In signing and returning this proposal to you I am relying on the assurances of Robin Davey, Chairman of Austel, and John MacMahon, General Manager of Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.

Despite nagging doubts, we felt a great sense of relief once we had sent off the agreement. The pressure on all four of us had been immense with TV and newspaper interviews as well as our ongoing canvassing of the Senate. And I had never stopped hammering for change in rural telephone services, at least in Victoria.

In December 1993 David Hawker MP, my local federal member, wrote to congratulate me for my ‘persistence to bring about improvements to Telecom’s country services’ and regretted ‘that it was at such a high personal cost.’

This was very affirming, as was a letter from the Hon. David Beddall MP, Minister for Communications in the Labor Government, which said, in part:

Let me say that the Government is most concerned at allegations that Telecom has not been maintaining telecommunications service quality at appropriate levels. I accept that in a number of cases, including Mr Smith’s, there has been great personal and financial distress. This is of great concern to me and a full investigation of the facts is clearly warranted.

A number of other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra detailing problems with their phones and various billing issues. I contacted Telstra management myself on a number of occasions, putting on record my requests for these matters to be resolved. I believe this was a responsible reaction to the letters I was receiving.

Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people and the general public suffered a very bumpy playing field compared to our city cousins. David M. Thomson & Associates, Insurance Loss Adjusters in Ballarat, wrote to the producer of Channel 7’s ‘Real Life’, a current affairs program:

I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater.

Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based.

On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.

Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time.

We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.

A letter to the Editor of Melbourne’s Herald-Sun, read:

I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses.

I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years.

I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line.

I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.

(Because of a number of reports regarding this ‘piercing noise’, Ray Morris from Telstra’s Country Division arranged to have my service switched to another system. Unfortunately this did not help.)

TV stations reported that their phones ran hot whenever they aired stories about phone faults. People rang from all over the country with complaints about Telstra’s service. This support from the media and the general public boosted our morale and gave us more energy to keep going as a group. We continued to push to have these matters addressed in the Senate.

AUSTEL’s Adverse Findings, at points 10 to 212 were compiled after the government communications regulator investigated my ongoing telephone problems. Government records (see Absentjustice-Introduction File 495 to 551) show AUSTEL’s adverse findings were provided to Telstra (the defendants) one month before Telstra and I signed our arbitration agreement. This allowed Telstra the chance to conceal the documents AUSTEL had located in Telstra's files before my arbitration began. I did not get a copy of these same findings until 23 November 2007, 12 years after the conclusion of my arbitration.

Point 115 –

“Some problems with incorrectly coded data seem to have existed for a considerable period of time. In July 1993 Mr Smith reported a problem with payphones dropping out on answer to calls made utilising his 008 number. Telecom diagnosed the problem as being to “Due to incorrect data in AXE 1004, CC-1. Fault repaired by Ballarat OSC 8/7/93, The original deadline for the data to be changed was June 14th 1991. Mr Smith’s complaint led to the identification of a problem which had existed for two years.”

Point 130 –

“On April 1993 Mr Smith wrote to AUSTEL and referred to the absent resolution of the Answer NO Voice problem on his service. Mr Smith maintained that it was only his constant complaints that had led Telecom to uncover this condition affecting his service, which he maintained he had been informed was caused by “increased customer traffic through the exchange.” On the evidence available to AUSTEL it appears that it was Mr Smith’s persistence which led to the uncovering and resolving of his problem – to the benefit of all subscribers in his area”.

Point 153 –

“A feature of the RCM system is that when a system goes “down” the system is also capable of automatically returning back to service. As quoted above, normally when the system goes “down” an alarm would have been generated at the Portland exchange, alerting local staff to a problem in the network. This would not have occurred in the case of the Cape Bridgewater RCM however, as the alarms had not been programmed. It was some 18 months after the RCM was put into operation that the fact the alarms were not programmed was discovered. In normal circumstances the failure to program the alarms would have been deficient, but in the case of the ongoing complaints from Mr Smith and other subscribers in the area the failure to program these alarms or determine whether they were programmed is almost inconceivable.”

Spoliation of evidence – Wikipedia

In simple terms, by AUSTEL only providing Telstra with a copy of their AUSTEL’s Adverse Findings in March 1994, not only assisted Telstra during their defence of my 1994/95 arbitration it also assisted Telstra in 2006, when the government could only assess my claims on a sanitized report prepared by AUSTEL and not their AUSTEL’s Adverse Findings.

Muzzling the media

We were getting a good amount of media coverage, even though it appears likely that some journalists were being asked by Telstra to ‘kill’ certain stories.

A memo between executives within Telstra back in July, entitled ‘COT Cases Latest ’, states, in part:

I disagree with raising the issue of the courts. That carried an implied threat not only to COT cases but to all customers that they will end up as lawyer fodder. Certainly that can be a message to give face to face to customers to hold in reserve if the complainants remain vexatious.

We are left to wonder how many Telstra’s customers like the COT Cases, who once they went into arbitration and/or mediation, ended up as lawyer fodder with broken homes and businesses destroyed?

A TV news program was also a target:

Good news re Channel —— News. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phrase it was that convinced —— not to proceed. Might have been one of ‘(name deleted) pearls.

The name deleted was Telstra’s Corporate Secretary at the time. I have omitted the identity of the TV station and reporter. We too can only wonder what it was that convinced a respected journalist to drop a story.

It transpired that the same area general manager who deliberately misinformed me during the settlement process in 1992–93 was one of the two Telstra staff appointed to ‘deal with the media/politicians’ regarding COT issues. Would she misinform the media the way she misinformed me, I wondered.

A memo between executives within Telstra back in July1993, entitled ‘Cot Wrap-Up’, states, in part:

I think it should be acknowledged these customers are not going to become delighted. We are dealing with the long-term aggrieved and they will not lie down.

Further, I propose that we consider immediately targeting key reporters in the major papers and turn them on to some sexy ‘Look at superbly built and maintained network’ stories.

I advise that Clinton be targeted for some decent Telstra exclusive stories to get his mind out of the gutter. Prologue Evidence File No 24 to 39

We ‘long-term aggrieved’ are left to wonder just who ‘Clinton’ was and why his mind was considered to be in the gutter.

Another most startling document which I received long after my arbitration Telstra FOI folio 101072 to 10123 titled “In-Service Test Performance for The Telecom Australia Public Switched Telephone Service (Telecom Confidential) notes:

“The performances tabulated below have been formulated to aid dispute investigation and resolution. The information contained herein is for internal Telstra Corporation use only and must not be released to any third party, particularly AUSTEL.” (refer 101072 Arbitrator File No 63)

If AUSTEL had known that this document included the words: “must not be released to any third party, particularly AUSTEL”, perhaps their public servants might not have perjured themselves in defence of Telstra’s arbitration claims that all the Service Verification Testing at my business on 29 September 1994 had met all AUSTEL’s specifications? And I believe those public servants certainly did perjure themselves, not only in their 2 February 1995 letter but again in the third COT cases quarterly report to the communications minister, the Hon Michael Lee MP. Refer to Main Evidence File No/2 and File No 3 which confirms that, at my premises at least, Telstra definitely did not carry out their arbitration Service Verification Testing (SVT) to AUSTEL’s mandatory specifications, at all.

During this story as well as on my website, I have raised the issue of the government communications regulator writing to Telstra before the COT arbitrations began to warn them that the government would be quite concerned if a certain legal firm had any further involvement with the COT settlement/arbitration process. I also raised my concern when the arbitration agreement faxed to the TIO’s office on 10 January 1994 bore the abbreviated name of this very same legal firm, despite the government assuring us this firm would NOT have a continuing role to play.

This FOI document (refer to Arbitrator File No/80), dated in the month of September 1993, was released to me by Telstra under FOI too late for me to use in my arbitration claim may well have persuaded the arbitrator to have allowed me more time to access documents from Telstra. As this document was released to me after my arbitration, one would have to assume it relates to my ongoing telephone problems i.e.

“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager.”

This Legal Professional Privilege document must be related to the threats I received from Telstra that if I did not register my phone complaints with these same lawyers (in writing) then Telstra would not investigate those complaints.

Chapter 5

Sold out

TIO Evidence File No 3-A is an internal Telstra email (FOI folio A05993) dated 10 November 1993, from Chris Vonwiller to Telstra’s corporate secretary Jim Holmes, CEO Frank Blount, group general manager of commercial Ian Campbell and other important members of the then-government owned corporation. The subject is Warwick Smith – COT cases and it is marked as CONFIDENTIAL:

“Warwick Smith contacted me in confidence to brief me on discussions he has had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.

“Advice from Warwick is:

Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.
Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly, approval by the Shadow Cabinet. …
The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with Warwick. The TIO sees no merit in a Senate Inquiry.

“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled.

“Could you please protect this information as confidential.”

Exhibit TIO Evidence File No 3-A confirms that two weeks before the TIO was officially appointed as the administrator of the Fast Track Settlement Proposal FTSP, which became the Fast-Track Arbitration Procedure (FTAP) he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.

It is highly likely the advice the TIO gave to Telstra’s senior executive, in confidence, (that Senator Ron Boswell’s National Party Room was not keen on holding a Senate enquiry) later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s preferred legalistic arbitration procedure, because they now had inside government privileged information: there was no longer a major threat of a Senate enquiry.

Was this secret government party-room information passed on to Telstra by the administrator to our arbitrations have anything to do with the Child Sexual Abuse and the cover-up of the paedophile activities by a former Senator who had been dealing with the four COT Cases? The fact that Warwick Smith, the soon-be administrator of the COT settlement/arbitrations, provided confidential government in-house information to the defendants (Telstra) was a very serious matter.

On 17 January 1994, Warwick Smith the Telecommunications Industry Ombudsman (TIO) distributed a media release announcing that DR Gordon Hughes would be the assessor to the four COT Fast Track Settlements processes. The TIO did not say that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases. The TIO also failed to tell the Australian public in this media release that he had agreed to secretly assist Telstra by providing them COT Cases issue  that were being discussed in the Coalition government Party Room.

Telstra and the TIO was treating us with sheer contempt, and in full view of the TIO and assessor. We were beginning to believe that no single person, and no organisation, anywhere in Australia, had the courage to instigate a judicial inquiry into the way Telstra steamrolled their way over legal process.

To be fair, Austel’s chairman, Robin Davey, expressed his anger to Telstra about their failure to supply us our necessary documents, but it was to no avail. By February 1994, Senator Ron Boswell asked Telstra questions in the Senate, again to no practical avail. (Questions about this failure to supply FOI documents were raised in the Senate on a number of occasions over the following years, by various Senators, whose persistence ultimately paid off for some members of COT but, unfortunately, not for me.)

Worse than this, however, was a new problem for us COT four. The assessor had somehow been persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.

Graham Schorer (COT spokesperson) telephoned the TIO, to explain why the COT four were rejecting the arbitration process. Our reasons were dismissed. The TIO said he had been spending too much time on his role as administrator of our FTSP; that his office had already incurred considerable expense because of this role (Telstra was slow in reimbursing those expenses). He went onto say that his office had no intention of continuing to incur expenses on our behalf. He told Graham that if we did not agree to drop our commercial agreement with Telstra, Telstra would pull out all stops to force us into a position where we would have to take Telstra to court to resolve our commercial losses.

Moreover, if we decided to take legal action to compel Telstra to honour their original commercial assessment agreement, he (the TIO) would resign as administrator to the procedure. This action, he insisted, would have forced an end to the FTSP and left us with no alternative but to each take conventional legal action to resolve our claims.

On 30 November 1993, this Telstra internal memo FOI document folio D01248, from Ted Benjamin, Telstra’s Group Manager – Customer Affairs and TIO Council Member writes to Ian Campbell, Customer Projects Executive Office. Subject: TIO AND COT. This was written seven days after Alan had signed the TIO-administered Fast Track Settlement Proposal (FTSP). In this memo, Mr Benjamin states:

“At today’s Council Meeting the TIO reported on his involvement with the COT settlement processes. It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.

I hope you agree with this.”

This shows that Telstra was partly or wholly funding the arbitration process.

If the process had been truly transparent then the claimants would have been provided with information regarding the funds – specifically, the amounts provided to the arbitrator, arbitrators resource unit, TIO and TIO special counsel for their individual professional advice throughout four COT arbitrations.

It is still not known how the arbitrator billed Telstra for his professional fees or how the TIO billed Telstra for his fees, and those of the TIO-appointed resource unit and special counsel. This raises the questions:

Was the arbitrator and resource unit paid on a monthly basis?

Did the resource unit receive any extra bonus for being secretly appointed as the second arbitrator in determining what arbitration documents the arbitrator was allowed to receive and what was withheld (see letter dated 11th July 1994, from Telstra to Warwick Smith)?

Without knowing how these payments were distributed by the defendants to the parties involved in the first four arbitrations, it would be impossible for the TIO and AUSTEL (now the ACMA) to continue to state that the COT arbitrations were independently administered.

To summarise the issue: during these four arbitrations, the defence was allowed to pay the arbitrator and those involved in the process. How is this different to the defendant in a criminal matter being allowed to pay the judge? It is a clear and concerning conflict of interest.

Senator Richard Alston (Shadow Minister for Communications) discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60).

Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference. Has the withholding of these names and the unavailability of my past historic fault documents related to the Jim Holmes issues mentioned below i.e. (see documents A01554, A06507 and A06508 - TIO Evidence File No 7-A to 7-C)?

The TIO had sold us out.

We implored the TIO to let us continue with the original FTSP agreement, but our pleas fell on deaf ears. Austel was no help either, and by April 1994, we had no choice but to prepare ourselves for an arbitration process. The first step was to familiarise ourselves with the rules of arbitration, unaware that Telstra’s lawyers had drafted them.

We had had been told, Austel had been told, and the Senate had been told that the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the President of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which had already, apparently, been supplied to the TIO’s office, but the TIO refused our request, saying that it was ‘irrelevant to our cause’ More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the mute force of Telstra’s corporate power.

The rules included a confidentiality agreement that prevented anyone involved in the arbitration process from discussing the conduct of the arbitration process. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra had perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct.

The Establishment

While it is clear the Australian Establishment saw him as a shining light because he was protecting the assets of the then Government-owned telecommunications carrier, and therefore protecting the public purse and so creating an outcome for the good of all Australians, what that arbitrator, and the Government, have never wanted to acknowledge is that when Dr Hughes bent the law to protect Telstra and its shareholders it actually meant that the rule of law was breached. Telstra, the TIO who was also the administrator of the arbitrations the arbitrator, used their position to bluff those interested government ministers of seeing a just outcome to all of the COT arbitrations including, the media into believing that the services once investigated during the arbitration process once an award had been handed down by the arbitrator that service was now operating efficiently and effectively. When this was disputed or fought in any way by the claimant then it was Telstra, the TIO and the arbitrators policy to fight the accusations for as long as possible to tire and eventually wear down the claimant. In my own case, it is shown in Bad Bureaucrats that over a six year period after my arbitration and no one would investigate my complaints of ongoing unaddressed arbitration faults I reluctantly sold the business in December 2001, to the Lewis family. Their seven year unsuccessful attempt to have the problems fixed is scattered throughout our story.

To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessor decided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No/56-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:

“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.

The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.

On18 November 1993, this same Chairman would not confirm this assurance in writing because, he explained, it could set a precedent. Telstra’s Corporate Secretary had written to him on 18th November 1993 (FOI D01274 to D01276, pointing out that:

“(3) Telecom does not accept the COT Cases’ grounds for reviewing the earlier settlements. However, on the basis of a denial of liability and without any legal obligation to do so and purely as a matter of good faith and business expediency, Telecom is prepared to agree to the above mentioned review.

(4) This proposal constitutes and offer open to all or any of the COT Cases referred to in Clause (1) (a), which will lapse at 5 pm Tuesday 23 November 1993. This offer may be accepted by signature below and sending advice of such signature to AUSTEL or the Telstra Corporate Secretary before that time.”

On 23 November Graham Schorer, Ann Garms, Maureen Gillan and I signed the FTSP, trusting in the Regulator’s verbal assurances that consequential losses would be included. These signed FTSP agreements were forwarded to Telstra’s corporate secretary. Alan included a letter with his agreement, clearly putting his expectations of the process:

“In signing and returning this proposal to you I am relying on the assurances of Mr Robin Davey, Chairman of Austel, and Mr John MacMahon, General Manager, Consumer Affairs, Austel, that this is a fair document. I was disappointed that Mr Davey was unwilling to put his assurances in writing, but am nevertheless prepared to accept what he said.

It goes on to say:

I would not sign this agreement if I thought it prevented me from continuing my efforts to have a satisfactory service for my business. It is a clear understanding that nothing in this agreement prevents me from continuing to seek a satisfactory telephone service.”

A more precise chronology of events surrounding the Fast Track Settlement Proposal v Fast Track Arbitration Procedure as well as who drafted the originall FTAP can be obtained by clicking on Evidence - C A V Part 1, 2 and 3 - Chapter 3 - Fast Track Settlement Proposal.

Signing for arbitration, April 1994

On 21 April 1994 when we signed the documents to launch the new arbitration procedure, we still hadn’t seen the rules of arbitration. Not only did we want to see what we were in for, we wanted to make sure that the rules really were different from Telstra’s ‘proposed rules’. Our concerns were of no interest to the TIO however and so, as lambs to the slaughter, we signed on the dotted line. Later we discovered that the set of rules that had been supplied to the TIO’s office was actually headed "Telstra Corporation- Limited 'Fast Track' Proposed Rules of Arbitration". No wonder he had not wanted us to see it. The assurance we had been given as to the drafting of the rules had been a complete lie. Was anybody interested? I don’t need to give the answer to that.

My time now was focused on preparing my case for arbitration. In April 1994, Austel released its report on the COT cases,, and I used its findings and recommendations as a basis for my claims. I thought its findings in relation to my case were a lot milder than the original submissions I had made, but I learned that Austel had apparently had to tone it down because Telstra had threatened to enforce an injunction tying the report up for years. Austel had agreed to the amendments demanded by Telstra so that we COT four could have access to information in the report to prepare our claims. I did not know then of the ‘secret’ draft that I mentioned at the end of Chapter Three. This I did not discover until 2007.

In the meantime though, the Austel Report did confirm something for me. While I was hearing a constant refrain of ‘No fault found’ from Telstra, technicians were recording the truer picture. On occasions when I had rung to report the phone ringing once or twice, followed by no connection, officials had refused to acknowledge the fault, but in its report, Austel showed a different story:

In the period February to April 1993 Telstra staff responding to complaints lodged by Mr Smith of the Cape Bridgewater Holiday Camp recorded in their notes that there was a fault known to exist in AXE (digital) switching equipment which could give rise to a single burst of ring, followed by a busy tone to a caller and dial tone to the called party.

This was supported by quotes from technicians on the complaint forms:

‘This problem occurs intermittently throughout the network and although it is recognised as a problem there appears to be no one person or group involved in resolving it.’

‘I believe this may be tied up with the axe network problem which gives only one burst of ring and the calling party gets busy tone.’

A new fault

Even as I began to assemble my claims, there was a new fault to include. This was the ‘hang-up’ fault. While Telstra was refusing to send me documentary evidence for my claim, I was ringing their engineers about testing this hang-up fault, creating no doubt more evidentiary material that would be denied to me.

Since August 1993, I had complained to Telstra that customers and friends alike were commenting on the peculiar behaviour of my direct line, which was also a fax line. After I had hung up from calls I had initiated, they could (if they were slower to hang up) still hear me moving around the office. Because of all the other problems I was dealing with, I hadn’t paid much attention to this, but I needed now to come to grips with it.

On 26 April 1994, I phoned Cliff Matherson, a senior engineer at Austel, who suggested we carry out a series of tests. First, I was to hang up and count out loud, from one to ten, while he listened at his end. I did this; he heard me right through to the number ten and suggested we try it again but count even further this time. Again, he could hear me right through the range I counted. Next, he suggested I remove the phone from that line and replace it with the phone connected to my other line (they were both the same Telstra phones, Exicom model T200). We repeated the test, with the same results. According to Mr Matherson (and it was also apparent to me) this proved that the fault was not in the phone itself, but somewhere in the Telstra network. His next suggestion was that I ring Telstra, which I duly did.

I explained to the Telstra engineer that I could count to 15 or more after hanging up, and that the person at the other end could hear me. I didn’t mention that I had tested two different phones because I was well aware that Telstra had a strong inclination to blame the customer’s equipment first. I was interested to see what he would come up with first.

I performed the same tests with the Telstra engineer, with the same results, and he promised to send a technician to collect the phone the next day. An internal email in March 1994 shows that Telstra’s engineer was aware, before the phone was even tested, that heat in the Cape Bridgewater exchange was causing the fault; the email also adds to the evidence that Telstra was aware of phone faults in the exchange, even while I was preparing my claim for arbitration.

I am concerned to note that heat may be part of the problem. I had occasion earlier this year to get involved in another ‘ongoing’ case involving an RCM with a heat problem at Murrumbateman (just outside Canberra). I do note, that one of the symptoms from the Murrumbateman case was ‘Not Receiving Ring,’ something Alan Smith at Cape Bridgewater has been complaining about for some time.

When my Telstra account is compared with Telstra’s data for this period, the call hang-ups and incorrect charging were occurring from at least August 1993 right up until the phone was taken away on 27 April 1994. The phone itself was an Exicom, manufactured in April 1993, and later proved to be a player in one of the many sub-plots of this saga. But that story comes later.

Preparational costs

In May 1994, A huge bundle of FOI documents finally arrived from Telstra, originally requested by me in December 1993, five months after they should have been provided under the then FOI Act. The legality requirements under the Act states quiet clearly that those supplying that requested information had 30-days in which to release the documentation being sought. However, Telstra has always been a law unto themselves with little the government seemed to be able to quash. ‘Wonderful,’ I thought, ‘now we’re getting somewhere.’ I was wrong. According to the FOI act, documents should be supplied in some sort of order, numbered, and preferably chronological. These documents had no numbering system, and were not in chronological order. Many were unreadable, with so much information blanked out that they were totally worthless. This would have driven even the most hardened lawyer to the wall with frustration. How could I support my claim with material like this?

A law student to assist would have been a God send. The mountain of documents threatened to engulf me entirely, especially knowing that Telstra’s enormous legal team stood by, waiting to pounce on every slightest crack they could manufacture in the claim documents I submitted.

I sought out the TIO and his legal counsel, explaining my lack of confidence and reiterating Robin Davey’s belief that a non-legalistic hearing was the best and fairest way for us to present our cases. The TIO could only console me with ‘Do the best you can,’ while his legal counsel assured me that the process was fair.

It was at this point of time that I decided I had no choice but to seek professional help. I began by approaching a firm of loss assessors in nearby Mt Gambier who had acted for me after some storm damage at the camp some years earlier. The assessor remembered that he had had a lot of trouble contacting me by phone. After discussing my current position, I decided that my problems were outside his area of expertise. I continued my search for assistance in the Melbourne metropolitan area, approaching four different companies specialising in communications. Three didn’t even respond in writing and the fourth simply wished me luck in finding someone who would be brave enough to go up against Telstra.

After this, I approached George Close in Queensland. George had technical expertise in the telecommunications area and was already working on Ann Garms’s case. He agreed to take mine on too, observing that we would get more of an insight into how Telstra was operating this way. Once Telstra became aware that we had secured George’s services, they approached him too, with an offer of work. It would seem they were trying to close off all avenues for us. George, however, at 70 years of age, was having none of that. He replied to Telstra that it would create a conflict of interest and, bless his beautiful heart, he declined their offer.

I also needed someone to help put the whole claim together. Finally, I located Garry Ellicott, an ex-National Crime Authority detective with a loss assessor company, Freemans, in Queensland. A final member of my team was Derek Ryan, a forensic accountant.

I felt cautiously optimistic. Government ministers, Austel, even the auditors, all agreed that the COT cases were right and Telstra was wrong. But we still had our backs against the wall. We were all in financial trouble and we were getting no financial assistance from anywhere. I was raising money by selling camp equipment and borrowing from friends.

When we signed on for an FTSP in November 1993, it was not for a legal arbitration. There was no allowance made for us to pay the legal professionals necessary to support our cases, and nor was such allowance made when the plan was switched on us. Had I known that professional fees would ultimately mount to over $200,000, I would never have agreed to the arbitration, even if the TIO and Telstra had held two guns to my head.

Under surveillance - Chapter 2

Telstra email K01006, dated Thursday 7 April 1994, at 2.05 pm raises two issues. Firstly this date falls during the time I was involved in the Regulator-designed commercial agreement with Telstra and secret observations would surely seem to be inappropriate, at the very least. Secondly, this document refers to a time when I would be away from his business during this pending arbitration process. The author of the email states:

“Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc. I called the premises at approx 4:55 pm 6/4/94. The answer time was 41 secs.

I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.”

Clearly, the writer knew, in April of 1994, that I planned to be away later that year, in August. In other words, he knew of my movements, four months in advance.

The then-Minister for Communications, the TIO and the Federal Police were all supplied with this document, along with a number of other documents indicating that my private telephone conversations were being ‘bugged’.Another FOI document Folio 000605, clearly shows that the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising what outdoor activities we were packaging for two and three night stop-overs. Horse riding, canoeing, caving and bush-walking. How could the writer have this information, if someone hadn’t listened to this call to find out when I was going and which local girl would be on duty at the camp? Anyone reading the AFP transcripts from their interview with me on 26 September 1994 (see AFP Evidence File No 1) they will see that the AFP documented many examples where unless Telstra was not listening into my private telephone conversations they would not have been able to document what they had on these FOI documents. Telstra have never been able to explain how they came by this information. At other times, this same person has also stated that he knew I had spoken to Malcolm Fraser, former Australian Prime Minister, on the phone, and when that conversation took place. (AFP Evidence File No 7) He insists I told him about this conversation, but this is not true. Again, Telstra has never been able to find a convincing explanation for their employee having this information. Obviously Telstra was still listening to my private calls, even though he was then involved in litigation with them and their lawyers.

Listening to private calls is appalling enough, but the following information is even more damning. Page A133 of the official Senate Hansard records dated 25 February 1994 states that the then-Shadow Minister for Communications questioned the Regulator’s Chairman, asking:

“Why did not Austel immediately refer COT’s allegations of voice recording to the federal police instead of waiting for the minister to refer the matter to the Attorney-General and then on to the federal police?

A copy of a letter dated 2 March 1994, from Telstra’s Corporate Solicitor, Ian Row, to Detective Superintendent Jeff Penrose (see Home Page Part-One File No/9-A to 9-C). This letter makes it quite clear that Mr Penrose was profoundly misled and deceived about the faxing problems I was having to deal with, as discussed in this letter. Over the years, many people have compared the four exhibits numbered (File No/9-C) with the interception evidence revealed in Open Letter File No/12, and File No/13 and promptly concluded that, if Ian Row had not misled the AFP in relation to my faxing issues then the AFP would have been able to stop Telstra from intercepting the various relevant AFP arbitration documents in March 1994, before any damage had been done.

The then-Minister for Communications, the TIO and the Federal police were all supplied with this document, along with a number of other documents indicating my private telephone conversations were being ‘bugged’. Another FOI document, Folio 000605, shows the writer knew when “…Smith is in Melbourne”. I used to go to Melbourne (see AFP Evidence File No 8) on promotional tours to various single clubs advertising the outdoor activities we were packaging for two and three night stays. This information could only have been gleaned from listening into this call to find out when I was going and which staff member would be on duty at the camp. Anyone reading the AFP transcripts of my interview on 26 September 1994 (see AFP Evidence File No 7) will see the AFP documented many examples Telstra must have listened into our private telephone conversations in order to document the details in these FOI documents. Open Letter File No/12 and File No/13 prove COT cases’ faxes were intercepted during their arbitrations.

At Australian Federal Police Investigations, there is a detailed description of how Dr Hughes (the arbitrator) spent five, non-stop hours interrogating me in front of two of Telstra’s arbitration defence officers. This interrogation included questions that were clearly made in an attempt to discover how far the Australian Federal Police had reached, during their investigations into issues that the then-Government Minister, Michael Lee MP, had officially asked them to investigate, in relation to whether or not my faxes were indeed being intercepted or had just been lost in the system. This sort of interrogation was, however, forbidden under the rules of the signed arbitration agreement but, in Australia, when you challenge the Telstra Corporation, you have absolutely no chance of finding justice!

In January 1999, the arbitration claimants provided the Australian government with a report confirming confidential, arbitration-related documents were secretly and illegally screened before they arrived at their intended destination. In my case, even though the arbitrator’s secretary advised the arbitration process that six of my faxed claim documents never reached the arbitrator’s office, I was never afforded the opportunity to resubmit this material for assessment. My fax account shows I dialled the correct fax number on all six occasions.

NONE of the COT cases was ever on a terrorist list in 1994 (or since, for that matter) and none of us was ever listed as suspects regarding any crimes committed against any Australian citizens. Why were our in-confidence arbitration and Telstra-related documents hacked by Telstra? In my case, 43 separate sets of correspondence faxed to the arbitrator’s office (some with attachments) are not listed on the Arbitration Schedules of Material as received by the arbitration process. Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994 six of my claim documents did not reach arbitrator’s fax machine. Yet, I was charged on my Telstra account for those six faxes. When this matter was exposed, no one from the arbitrator’s office nor the TIO’s office allowed me to amend my claim so that proven “not received” claim documents were valued by the arbitrator in support of my claim.

I raised enough cash to bring Garry Ellicott to the camp for a few days in May 1994 to observe what was going on with the phones. During his stay, Garry commented that he believed I was being watched, or rather, listened in on. His background as bodyguard for US President, Jimmy Carter, gave him some experience in this area during his visit to Australia.

I already had experienced several instances of Telstra accumulating personal information about me — details of who rang me, when they rang and from where, when staff left my business, even my movements. In April 1994, Telstra's Melbourne fault reporting officer seemed to be aware of my movements four months in advance when he wrote an internal memo to another member of staff:

Mr Alan Smith is absent from his premises from 5/8/94 – 8/8/94. On other occasions when he has been absent there have been documented complaints received (usually months later) involving NRR etc …I intend on this occasion to document his absence and file all data I can collect for the period. That way we should be prepared for anything that follows.

Telstra has never explained how this Telstra fault officer came by this information, nor how he also knew I had spoken to the former Australian Prime Minister, Mr Malcolm Fraser, on the phone, and when that conversation took place.

This person insists I told him about this conversation but this is not true. I told him no such thing.

In an internal Telstra memo around the time of the ‘briefcase saga’, the unidentified writer, a local Telstra technician, offers to supply a list of phone numbers I had rung. I had previously learned that the writer was listening in to my private conversations and, when I challenged him with this information, he informed me he was not the only technician in Portland listening in.

Not long into our arbitrations, Graham Schorer (in his official role as COT spokesperson) received two phone calls within a couple of days, both from young people. They told Graham they knew we were in arbitration with Telstra and wanted to alert him to what they had discovered when they hacked into Telstra’s email network. They had found documents confirming that there were people close to our arbitration – as well as Telstra – who were acting unlawfully towards us. Both times they rang they asked if we would like them to send us that evidence.

Graham and I discussed the offer of the first call, but we finally said NO on the second call although we were interested in what Graham had heard. We were concerned this might be a set-up by Telstra and therefore if we agreed to accept this promising material, then both our arbitrations might be declared null and void.

Since then, Andrew Fowler and Suelette Dreyfus have each published book referring to Julian Assange’s hacking into Telstra’s Lonsdale Telephone Exchange in Melbourne, which Graham’s business and mine were trunked through. Was it Julian Assange and his friends who had contacted us? His concerns about the COT cases not getting the justice we were entitled to, certainly matches his profile.

In hindsight, we probably should have accepted that very kind offer. We might well have been able to use that evidence against Telstra all those years ago, and perhaps we would not be here writing our story 20 or more years later.

This side of the COT story can be accessed by viewing our website absentjustice.com and clicking onto our Hacking - Julian Assange page.

Between February and September 1994, I provided documents to the Australian Federal Police which I had received under FOI showing Telstra knew more about my private and business arrangements than it should have. On 3 June 1990, during the period Telstra was telling me they had not found any problems (faults in their network) that were still affecting the viability of my businesses, "The Australian" (newspaper) printed an article under the heading: Telecom ‘spying’ on its employees, which supports pages 1 to 6 of the AFP transcripts (see Senate Evidence File No/ 44 Part 1 and File No/45 Part). The newspaper article states:

“She said the accusations were contained in a statement by a former member of Telecom’s Protective Services branch.

“Senator Jenkins said the man claimed:

He and other Telecom employees and private investigators hired by Telecom did secret surveillance on hundreds of compensation recipients. …

He had been directed by his superior to use whatever methods to get the desired results, even when it was obvious the claimant was genuinely injured.

Claimants have had a ‘C.CASS run’ on their homes, which is a procedure where a computer can print out all numbers dialled on a home phone.” (See Hacking-Julian Assange File No/19)

Democrat Senator Jean Jenkins told the Senate last week Telecom’s activities included bugging workers’ homes. …

In February 1994, the AFP visited my business at Cape Bridgewater to discuss my claims that recently received FOI documents suggested Telstra had been monitoring my telephone conversations. The AFP was concerned that Telstra had written the names of various people and businesses I had called, on CCAS data records, which collated all incoming and outgoing calls to my business (see Hacking-Julian Assange File No 20). The hand-written notes in the right-hand column of this CCAS data include against dates, the names of people that I telephoned and/or faxed e.g., 31 January 1994, GM (Golden Messenger), AUSTEL and the Ombudsman. In one instance, the name Faye Smith appears when I phoned my ex-wife. This reflects Senator Jenkins statements above regarding Telstra’s secret surveillance of their own employees in 1990, because here is Telstra using similar tactics in January 1994 while they were in a litigation process with me.

The pressure on all four of us COT cases was immense, with TV and newspaper interviews as well as our continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The other three COT Cases businesses were in central Brisbane and Melbourne. The Hon David Hawker MP, my local Federal member of parliament, had been corresponding with me for some time concerned that people in his electorate were being treated as second-class citizens. On 26 July 1993, Mr Hawker wrote:

“A number of people seem to be experiencing some or all of the problems which you have outlined to me. …

“I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one.” (See Arbitrator File No/76)

On 18 August 1993 The Hon David Hawker again wrote to me, noting:

“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.

“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing.” (See Arbitrator File No/77 and Arbitrator File No/82)

An internal hand-writen Telstra memo (see AFP Evidence File No 8) discusses two singles club clients of mine (I have redacted the names of these clients for security reasons), describes the constant engaged signal she experienced when trying to book a weekend during April and May 1993. AFP Evidence File No 8) dated 17 June 1993, records the personal phone numbers of these two ladies, but it also confirms Telstra was fully aware of when my office assistant left the business while I was away.

My AFP interview transcript on 26 September 1994 describes Telstra recording who I phoned or faxed, and when. The AFP believed Telstra monitored my calls because the people they recorded were associated with the COT issues. Pages 3-5 of the AFP transcript, together with other documents I provided to the AFP between February and November 1994, prove that Telstra had listened in on private conversations.

So chronic and serious were my telephone faults in early 1993, that Telstra threatened (the first of two series of threats) that I had to register my ongoing telephone/faxing problems with their outside lawyers or they would refuse to regard my complaints as genuine.

By July/August 1993, the communications regulator was becoming concerned at Telstra’s approach to our complaints; particularly their continual use of outside solicitors. In October 1993, while the regulator was negotiating with Telstra for a commercial settlement proposal to be put in place for the COT members, the regulator’s chairman made it clear to Telstra’s commercial division that the regulator would not be happy if Telstra’s solicitors were used in future COT matters. This request was ignored however and Telstra continued to insist that I register my complaints through their solicitors, even though by then I was in litigation with Telstra

This fight was dirty and controlled.

Later, when Telstra submitted their defence of my arbitration, I learned that Telstra’s solicitors also acted as Telstra’s defence counsel. By this time, I was able to provide the arbitrator with clear proof that Telstra had provided incorrect written statements to the regulator and me, with regard to incidents that occurred between January and August of 1993. The arbitrator would not investigate this information.

One document I provided the AFP in 1994, does not state Adelaide or a specific location elsewhere, other than I was visiting Melbourne. I used to visit both Melbourne and South Australia on a regular basis from 1991 to 1993. Did Telstra even know where I stayed and who with? Let us not forget, I was not under suspicion of committing any crime let alone a serious one, nor was I suspected of being a terrorist. So why were the communications carrier and/or their government minders interested in my contacts and movements? When I showed AFP Evidence File No 8 to Margaret (my office assistant) she advised me that she had not spoken to anyone about leaving the holiday camp (which was at 5.30 pm just as described in this Telstra memo). This part of our Hacking-Julian Assange page more than suggests that my daily moments were monitored by someone and/or some organisation who had ready access to Telstra’s network.

After the AFP had discussed that Telstra file note with me it became clear that Telstra knew that I was getting regular phone calls from someone in Adelaide who usually rang from his Pizza Restaurant but, on this occasion, they had noted that he had phoned me from a different number. AFP transcripts indicate their concern that, in order to have gained this knowledge, Telstra must have been listening to ALL my telephone conversations, both on a regular basis and for some considerable time. I alerted AUSTEL to this situation because some documents, which I have retained, record some eighty or more calls that should have connected to my business but didn’t, because they were illegally diverted to another number. At that time, this is exactly what was happening to other businesses around Australia too, and AUSTEL and the AFP could both see that all those calls were being diverted to the same business.

Federal Police investigation

Other members of COT also experienced this ‘voice monitoring’. In a Telstra internal memo relating to the Tivoli Theatre Restaurant, owned and run by Ann Garms in Brisbane, is the comment:

Tests looped … maybe the bug has slipped off. Looks like a job for super sleuth Sherlock Kelly? (See to exhibit 2 file Phone/fax bugging 1 to 8)

An ongoing Telstra fault record relating to the Tivoli Restaurant provides surprisingly interesting reading when it makes reference to the Federal Police investigation:

John Brereton (Fed Police) initially stated a particular person was paying money for 3 people + others in Telstra to manipulate some services … Why was Federal police stopped from investigating the Tivoli Case …

Why did John Brereton start to deny everything and then volunteer for service in New Guinea for 2 years …”

Why did AA of Protective Services initially accede to my request to borrow a Bug scanning device for the 12th Night and Tivoli, then suddenly change heart (See exhibit 1 file Phone/fax bugging 1 to 8)

In January 1994, COT members informed the Minister of Communications of our suspicions of Telstra bugging, after which things happened very quickly. The Minister ordered an investigation by the Federal Police (AFP), and on 10 February 1994 Austel wrote to the Telstra Manager in charge of the COT arbitrations:

Yesterday we were called upon by officers of the Australian Federal Police in relation to the taping of the telephone services of COT cases.

On 25 February, Senator Alston, then Shadow Minister for Communications, asked Austel’s Mr Robin Davey in the Senate Estimates Committee hearing on COT issues:

Mr Davey, Why did not Austel immediately refer COT’s allegations of voice recording to the Federal Police instead of waiting for the Minister to refer the matter to the Attorney General and then on to the Federal Police?

Be that as it may, when the AFP interviewed Austel, they were provided with documents showing that Telstra had listened in to my phone conversations.

In a letter to Telstra in February 1994, John MacMahon, General Manager, Consumer Affairs, Austel, acknowledges receipt of nine audio tapes from Telstra and notes that these tapes, which are related to the ‘taping of the telephone services of COT Cases,’ had been passed on to the AFP. No warrant was ever issued by the Federal Court for this taping, neither was a warrant issued in either of the Australian states in which the taping took place. Clearly, therefore, this taping was carried out unlawfully. Further, it was carried out during a legal resolution process involving the COT members.

Despite these investigations, no findings of Telstra’s surveillance or monitoring activities have ever been officially presented. At the time of writing, Telstra has still not been held to account, even for those which took place when Telstra was in arbitration with me. If the AFP or the government had pursued these questions, I would not still be searching for answers today.

On a number of occasions during 1994 I was interviewed by the AFP on this matter, and while they were unable to show me the documents and tapes Austel had given them, it seemed to me they were taking my problems with Telstra and my arbitration seriously. In one interview, I showed them an FOI document which conveys that the writer knew where the caller usually rang from even though, on this occasion, the caller was phoning from a different number, ‘somewhere near Adelaide’. The police were concerned about how a caller was able to be identified if he called from another number.

Constable (name deleted) of the AFP affirmed for me that Telstra had provided them with evidence of this ‘live monitoring’, which had gone on for some time:

… you were live monitored for a period of time. So we’re quite satisfied that, that there are other references to it.

Senator Alston also put a number of questions on notice for the Senate Estimates Committee, to be answered by Telstra. These are the questions most pertinent to the COT claimants:

5.    Could you guarantee that no Parliamentarians, who have had dealings with ‘COT’ members, have had their phone conversations bugged or taped by Telstra?

9.    Who authorised this taping of ‘COT’ members phone conversations and how many and which Telstra employees were involved in either the voice recordings, transcribing the recordings or analysing the tapes?

10. On what basis is Telstra denying copies of tapes to those customers which it has admitted to taping?

11. (A) How many customers has Telstra recorded as having had their phone conversations taped without knowledge or consent since 1990?

       (B) Of these, how many were customers who had compensation claims, including ex-Telstra employees, against Telstra?

In all the FOI documents I have searched, I have never seen these questions answered.

Other FOI documents I presented to the Australian Federal Police show that Telstra officials were making notes on who I rang and were keeping records including the names of other organisations, clients and friends. Even my ex-wife did not escape — her name was listed also. I kept the TIO informed of such developments, but at no point did he ever make any response on the matter.

An extraordinary intervention

At the end of March 1994, I got an extraordinary phone call. Frank Blount, Telstra’s CEO, their top man, rang me, wanting to know what I thought was the underlying cause of my telephone problems. Presumably, he had taken this upon himself to find the cause of my complaints. He was understanding, respectful and courteous, and I told him I thought that both Portland and Cape Bridgewater exchanges had been suffering from congestion for years. He gave me his word that he would investigate my theory, and it turned out he was a man of his word.

‘Cape Bridgewater COT Case’, an internal Telstra email dated 6 April 1994, shows the result of his influence:

Following previous lost call analysis of the Z route between Warrnambool node and Portland AXE–R (PORX) it was decided to increment this route from 30 to 60 CCTS …

Could you please ‘fast track’ this project due to the sensitivity of the current COT case at Cape Bridgewater (off PORX).

Another, dated 7 April 1994, followed with:

At 4.55 pm on 6/4/94 I was informed by Network Ops that the route into the Portland exchange would be increased by 30%. The work was to be completed prior to midnight that day. This should alleviate any problems Mr Smith or anyone else in the area has been experiencing with congestion into the area for some time.

(In fact, an extra 30 circuits into Portland (30 to 60 CCTS) represented a 100% increase in the phone route into Portland exchange, not 30%. But either way, the increase in lines was appreciated allowing more 008/1800 customers to finally connect to my business)

It needs to be remembered too that much of the business income that I lost in connection to my social and single club setup was directly related to my then-ongoing telephone free-call 008/1800 service problems and, coincidentally, many of the social club patrons who had been unable to get through to me on the phone (which meant, of course, that they couldn’t book in), came from Ballarat, Melbourne and South Australia.

On one of these many occasions, AUSTEL took up an investigation, on my behalf, and that revealed the problem I had raised with Telstra, in the past, about Ballarat’s telephone public phone system, a problem that had, until then, lasted for more then two years and, as AUSTEL actually states at point 115 AUSTEL’s Adverse Findings), if it had not been for my persistence in demanding that Telstra investigate my complaints about Ballarat’s telephone system (even though I wasn’t even living there then), this fault that turned out to be a problem in Telstra’s public phone system, would have continued to affect the Ballarat region long after the two years it had already existed in the network

Break-ins and losses

From the sublime to the ridiculous. It was also March 1994 when Graham Schorer and another COT member suffered break-ins and lost business-related documents. That made all of us a lot more vigilant. I found no evidence of a break-in, but I did notice two diaries covering the period 1987 to 1989 were missing. I decided to remove my official business diaries from my office, and from then on I transferred information to them on a weekly basis from my wall calendar and unofficial notebooks.

During his visit, Garry Ellicott and I spent five nights trying to decipher the pile of Telstra discovery documents. It was during his visit I discovered further losses: exercise books in which I kept official booking records; a number of bank statements and my bank pay-in books for 1992/93. I cannot account for these losses. It is possible they were also missing in March, and I simply didn’t notice their absence. Without these records, I was hard pressed to produce full and correct financial statements for my forensic accountant, Derek Ryan, and was reduced to scavenging information from wall calendars and other unofficial sources. When Garry returned to Queensland I got him to take the work diaries with him for safe-keeping.

The fallout from all this became evident some weeks after my oral arbitration hearing in October 1994, when the arbitrator asked for my annual diaries for assessment. Garry sent them directly to his office. Soon after that, Telstra submitted their defence of my claims. Then, two months later, in February 1995, Telstra advised the arbitrator that they had found discrepancies in my diaries, claiming I had added entries after the date that the calls and incidences recorded had actually occurred.

I have explained over many years as to how, and why, I’d had to copy fault complaint records into the diaries from exercise books, and affirmed that nonetheless, my chronology of fault events was true and correct. I have since reminded him and the arbitration project manager that during my oral arbitration hearing I had practically begged to be allowed to submit these fault complaints notebooks (as the transcripts of this meeting show. But as the transcripts show Telstra had objected to the submission of these facts and the arbitrator had asserted, without viewing them, that they were irrelevant.

Nevertheless, when it came to his summary in relation to these diaries, the arbitrator stated:

… I have considered, and have no grounds to reject the expert evidence provided by Telecom from Neil William Holland, Forensic Document Examiner, who examined the claimant’s diaries and because of numerous instances of non-chronological entries, thereby causing doubt on their veracity and reliability

I contend that if the arbitrator had allowed these notes taken from my exercise books as evidence, and provided them to Telstra’s Forensic Documents Examiner, Mr Holland would have had a clear understanding of what the exercise books really were and would have realised there was no attempt at deception. On a similar note, I suppose that some readers might be wary of accepting all I write here as truth, as I am aware that some of it seems so outlandish.

Yet during his time as Minister for Communications in the early 1990s, Senator Kim Beazley was concerned at how Telstra’s Protective Services Unit spied on its own technicians and other employees, documenting their movements while they were on sick leave, so I do not think it unreasonable that we COT members believed we also were being spied on.

For one instance, in July 1992 I had asked Telstra for a written guarantee that my phone service was up to network standard. I wrote this request to Telstra without ever mentioning the name of the bus company who had asked for the guarantee, but in 1994, among documents sent in response to one of my FOI requests, I found a copy of the letter I had written, on which the name ‘O’Meara’ had been scrawled. Had Telstra been listening to my phone conversations? If so, this was spying, way back in 1992, long before the arbitration process began. These issues of an individual’s right to privacy and a corporation’s manipulation of the system go to the core of Australian democracy.

Trying to produce a claim in some readable form when the story was so complex, multi-layered, and complicated by long-delayed access to necessary information, was extremely difficult. My phone and fax lines became life-lines to Garry Ellicott in Queensland.

When Garry attempted to ring me on 27 May 1994 on my 1800 service he twice reached a recorded announcement telling him my number was not connected before he finally got through. When Garry rang Telstra fault centre to complain about these voice messages the operator told him she could not register the fault because the complaint had to come from the customer. Garry’s response was understandably blunt. ‘How,’ he asked, ‘can the customer complain if he doesn’t know I’m trying to reach him? How can he complain if he is not aware that his incoming callers believe he’s no longer trading?’ When my telephone account arrived I had, of course, been charged for both failed calls.

On the subject of these recorded announcements, the Austel report observed:

Monitoring equipment at the exchange will not identify this condition as the call will either not be received at the terminating exchange or it will be seen as a call existing from the exchange. Complementary equipment at the customer’s premises will not record a call being received in either of the above circumstances

I had been fighting for more than six years and still I was caught in a game of ‘catch up tennis’. As each new fault appeared I had to lodge an FOI request for Telstra data and each request would take at least 30 days to bring results. No sooner had I faxed information to the arbitrator detailing the previous month’s faults than more occurred and I had to wait, again, for another 30 days to get copies of Telstra’s records. If anyone heard my tales of frustration, they apparently didn’t care.

Hackers For Justice

A Man With A Conscience

On page 15 in the novel The Most Dangerous Man In The World by Andrew Fowler, he makes the following statement:

"The Lonsdale Telephone Exchange in the centre of Melbourne with its black marble facade, is an eye-catching building. In the last 1980s it was the gatway to other telephone exchanges and organisations linked to super computers around the world".

The information on Bad Bureaucrats - Taking on the Establishment and Chapters 1 to Chapters 9 Julian Assange Hacking are all related to the following a discussion Graham Schorer (COT spokesperson) had with a group of young hackers who we now beleive was Julian Assange and his friends. These young hackers contacted the group during the early part of COT arbitrations.

That the hackers informed Graham Schorer they had broken into.the Melbourne Lonsdale Telephone Exchanges.

In June 1993, more than twenty years before Andrew Fowler and Julian Assange had ever heard of the Lonsdale Telephone Exchange, Telstra had left an unlocked briefcase at my premises; it revealed that the Lonsdale Telephone Exchange had poorly been programmed and that the Ericsson AXE telephone exchanges equipment being used by Telstra in their telephone exchanges were known to be suffering significant faults.

On 4 and 5 June 1993, I freely provided AUSTEL (the then government communications regulator this evidence without copying much of it because of my limited copying facilities. A facsimile machine and a roll system were OK for faxes arriving, but that was its fundamental limitation. Later AUSTEL's Queens Road Melbourne office discovered from reading further documents that it became apparent other countries around the world were now removing the Ericsson AXE equipment from their exchanges or had removed it from their exchanges. So why was Telstra still using this equipment that destroyed businesses throughout Australia?

I provided the AUSTEL with further damaging information concerning the weaknesses in Telstra's Melbourne Lonsdale Exchange which showed that 50 per cent of my Melbourne telephone callers from Melbourne calling into my business at Cape Bridgewater 430 kilometres away were trunked through the Lonsdale Exchange. Telstra had somehow forgotten to programme the first six digits 055 267 of the Cape Bridgewater telephone exchange into the system for at least eight months. While this was bad enough, those callers received a recorded electronic message telling them my business was no longer trading.

So, when we were offered documents from an unknown source stating the hackers had gained access to Telstra's Melbourne Lonsdale Telephone Exchange which we knew was linked to the outside world, alarm bells began to ring. We were being offered emails and faxes proving Telstra and others had us COT Cases under electronic surveillance during our arbitration; we thought this might be set up. Was the Lonsdale Exchange the carrot to trap us into accepting documents outside of the arbitration process? Therefore, we declined to take the documents on offer.

A statutory declaration prepared by Graham Schorer (COT spokesperson) on 7 July 2011 was provided to the Victorian Attorney-General the Hon Robert Clark. This statutory declaration discusses three young computer hackers who phoned Graham to warn him during the 1994 COT arbitrations. The hackers had discovered Telstra and others associated with our arbitrations were acting unlawfully towards the COT group. Graham’s statutory declaration includes the following statements:

“After I signed the arbitration agreement on 21st April 1994 I received a phone call after business hours when I was working back late in the office. This call was to my unpublished direct number.

“The young man on the other end asked for me by name. When I had confirmed I was the named person, he stated that he and his two friends had gained internal access to Telstra’s records, internal emails, memos, faxes, etc. He stated that he did not like what they had uncovered. He suggested that I should talk to Frank Blount directly. He offered to give me his direct lines in the his  Melbourne and Sydney offices …

“The caller tried to stress that it was Telstra’s conduct towards me and the other COT members that they were trying to bring to our attention.

“I queried whether he knew that Telstra had a Protective Services department, whose task was to maintain the security of the network. They laughed, and said that yes they did, as they were watching them (Telstra) looking for them (the hackers). …

“After this call, I spoke to Alan Smith about the matter. We agreed that while the offer was tempting we decided we should only obtain our arbitration documents through the designated process agreed to before we signed the agreement.”

Chapter 6

Arbitration

It is time I introduced Cathy. We met in 1993 when she brought a group of underprivileged children to the camp from Ballarat. She was a very warm and competent coordinator in the field of family support. We stayed in touch after that, and she assisted me from Ballarat in various camp operations over the next year or so. Then in May 1994, she agreed to come and work at the camp while I concentrated on my arbitration. By the end of the year, we were partners.

Her assistance was timely, for in the course of preparing for my arbitration came new nightmares. I discovered things I thought I’d faxed to my advisers or to the arbitrator had not got through. I was regularly contacting Austels two nominated representatives with evidence of pages of my faxes which came out at the receiver’s end as blank pages, often with a small symbol at the top of each page, on the left or the right.

And, of course, Telstra charged me for these blanks (as it also continued to charge me for unconnected 1800 calls), each of these pages appearing on my Telstra account in terms of minutes to transmit. I asked Telstra repeatedly, in writing and through various legal processes, why these pages should arrive at the other end as blanks, but I never received an answer.

I told my arbitrator I believed he was not receiving all the faxes I was sending him. Regarding one instance, on 23 May 1994, Telstra insisted the problem had occurred because the arbitrator’s fax was busy when my fax was attempting to get through. Whatever happened to my fax, hearing a busy signal and trying again? And besides, why was I charged for the call? In fact, my phone account showed, on this day, charges for seven non-connected calls to the arbitrator’s office. The question is, where did those seven faxed claim documents end up? It is clear who benefited from their disappearance, but still, the arbitrator was not interested in investigating this.

Because of the need to be in constant contact with Garry Ellicott and George Close, my claim advisors in Queensland, my Telstra account for this period reached more than $16,000 by May 1995. My home account was another $2000. Telstra, meanwhile, had set up a special office just to deal with the COT arbitrations, and in 1996 admitted that the COT arbitrations had, up to then, had cost Telstra in excess of $18 million. All this to fight a small group of small-business people who were looking only for Australian justice!

Meanwhile, we were asking the Commonwealth Ombudsman to investigate why Telstra would not supply our discovery documents. The longer we were kept waiting, the longer our advisors and researchers were kept waiting, and the more it cost us to participate in this so-called ‘fast tracked’ procedure. Telstra seemed deliberately delayed the supply of the discovery documents, giving them more time to prepare their defence or giving their legal unit more time with the discovery documents before our advisors saw them. Either way, it seemed to me the whole arbitration was being orchestrated by Telstra as an exercise in thwarting any investigation into their dubious conduct. Certainly an exercise in power imbalance, with the arbitrator weighing in on their side in a myriad of ways.

The FOI documents were unreadable or totally blank

In June 1994, I was obliged to ask the arbitrator for extra time to prepare my claim and was allowed one extra week. By contrast, the records show that Telstra was allowed an extra 72 days. A Telstra representative was in the arbitrator’s office when Graham Schorer and I arrived with my interim claim documents on 15 June 1994. My documents were taken away by Telstra’s defence counsel. I could not understand how the arbitrator could allow Telstra access to my interim claim documents when he knew I was still waiting for vital discovery documents to complete my submission. Moreover, the arbitration rules were clear that Telstra was allowed only one month to prepare their defence of my claim, but they did not present that defence until 12 December 1994, six months later.

On 11 July 1994, Steve Black, Telstra’s arbitration resource unit, writes to Warwick Smith, stating:-

Telecom will also make available to the arbitrator a summarised list of information which is available, some of which may be relevant to the arbitration. This information will be available for the resource unit to peruse. If the resource unit forms the view that this information should be provided to the arbitrator, then Telecom would accede to this request.

The statement in Telstra’s letter: -

“if the resource unit forms the view that this information should be provided to the arbitrator.”

This confirms that both the TIO and Telstra were aware that the TIO-appointed resource unit had been assigned to vet most, if not all, the arbitration procedural documents en route to the arbitrator

If the resource unit decided a particular document was not relevant to the arbitration process, it would not be passed on to the arbitrator or other parties. This particular secret deal has been linked to further clandestine dealings and is discussed further on our website link (see Telecommunication Industry Ombudsman/Chapter Four. Could this secret deal be directly related to the very important 24 January 1995 arbitration letter, which is discussed later in our story which the TIO states did not exist when our exhibit file shows it did exist and was clearly received at the arbitrator’s office as the 24 January 1995 fax-footprint shows,

The Telecommunications Industry Ombudsman (TIO) is an Australian National Telecommunications Industry Regulator, which seems like a good idea except that this Ombudsman is funded by the telecommunication carriers themselves, which means that it can hardly be called impartial, on any level, but particularly when they are involved in an arbitration, and their wages are actually paid by the defendants in that arbitration!

It is also important to point out that page 5 of the Commercial Arbitration Act 1984, under Part 11 – Appointment of Arbitrators and Umpires states:-(6) Presumption of single arbitrator

An arbitration agreement shall be taken to provide for the appointment of a single arbitrator unless –
(a) the agreement otherwise provides; or
(b) the parties otherwise agree in writing.

The arbitration agreement the four COT Cases, signed in April, 1994 mentions only one arbitrator. They have never seen any written agreement that allows a second arbitrator to determine what information the first arbitrator and claimants will see.

Service Verification Testing, September 1994

On 29 September 1994, when this SVT process was supposed to bee carried out, my partner and I sent individual statutory declarations to the arbitrator, the TIO, AUSTEL and Telstra and I continued to write letters regarding this failed process until 15 February 1995 (see Bad Bureaucrats File No/15). After my letters to the TIO and arbitrator on 2 and 10 October 1994, I telephoned the TIO’s office to demand that, as administrators of my arbitration, they call on DMR Australia Pty Ltd, the organisation assigned to assess any technical matters that arose, to fulfil their role in relation to the SVTs: my request was denied.

A Telstra internal email, dated 13 December 1993, shows AUSTEL’s deputy chair Dr Bob Horton allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing, i.e.,

“This E-Mail is to alert you to a possible regulatory interaction with the current work on ‘COTS Cases’ and ongoing work with AUSTEL on network performance.

“As you know, a Ministerial Direction gave AUSTEL power to set end-to-end network performance standards. …

“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with Bob Horton and a presentation to the Standards Advisory Committee by , AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern.” (See Arbitrator File No/72)

Dr Horton was AUSTEL’s acting chair at the time. It is easy to see just how bad this situation was for me by simply linking this limiting of the mandatory testing with another Telstra internal email, dated 15 November 1993, which states that:

“Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them – I am attempting to check them. Some of the people supplying this information live in ‘old Telecom’!” (See Arbitrator File No/73)

The following is from the transcript of an oral interview of AUSTEL’s representatives, Bruce Matthews and John McMahon, conducted at the Commonwealth Ombudsman’s Office on 22 September 1994. On page 7 of this transcript, John Wynack asks, “What was the date the report was issued, the AUSTEL report?”

AUSTEL’s representative replies, “The final report was April – I can’t remember the date in April, but April 1994. The draft report was produced in March 1994 and Telecom received their copy of that at the time.” (As we have shown throughout this website, See Falsification Reports File No/4)

While this statement by one of AUSTEL’s representatives makes it clear Telstra received a copy of AUSTEL’s draft findings, NONE of the information in this report, which enabled the government communications regulator (AUSTEL) to arrive at their adverse findings against the Telstra Corporation, was ever made available to the COT claimants during their arbitrations. The version we received in 2007 was certainly not the draft version we viewed in the lock-up meeting.

PLEASE NOTE:

Meanwhile, on 29 September 1994, Telstra’s Chief Engineer brought Service Verification Testing (SVT) equipment to the Camp. Telstra was obliged to prove that there were no longer any phone problems. Right from the start, this engineer experienced major problems getting the equipment to work on any of our three separate lines. Nevertheless, he went ahead with his testing.

No calls were able to reach the camp, so Telstra technicians at the exchange were generating calls for testing purposes. Whatever the results, they had to be totally meaningless because the fact was true incoming calls were not received. On 2 October and 10 October, I complained to Telstra about these deficiencies in the verification testing and sent copies to the arbitrator, the TIO, and Austel. There was no response whatsoever to our statutory declarations.

However, six weeks later, Austel responded, writing to Telstra expressing concerns about the SVT testing process as it was conducted on 29 September. The testing did not meet Austel’s mandatory specifications for testing. Telstra’s own CCAS data for this day confirms that not one of the tests carried out on my three lines met Austel’s testing requirements.

Nevertheless, Telstra went ahead and presented the test results in their arbitration defence. Concluding that my services were now at network standard, along with a sworn statement by this particular engineer that the tests had met all of Austel’s requirements when shows they did not meet those requirements at all.

I do not know what to call this act of blatant, intentional misrepresentation. Certainly not ethical, and I’m sure it was not legal. Why did I not do anything about this? Because I did not learn about it until 2002, seven years later and neatly outside the statute of limitations.

Had the arbitrator been made aware of the said deficiencies that Austel had raised regarding the SVT testing and that the testing could not have produced the mandatory success rate, the arbitrator, would have been duty-bound to find in my award. In doing so, Telstra was operating outside their licence agreement by not supplying a level playing field to operate my business on the same terms as my competitors.

Austel, for its part, seemed quick to forget its letter of 16 November. In its quarterly report on the COT Cases to the Minister for Communications and the Arts in February 1995, it withheld its true findings and stated baldly that:

All six of the telephone services subjected to the Services Verification Tests have met or exceeded the requirements established.

What happened to Austel to make it change its tune?

My oral hearing was arranged for 11 October 1994. This hearing followed the submission of the interim claim documents. It was for the purpose of determining for the arbitrator what other information each party might need to supply to assist the process — the documents I needed to access from Telstra, and vice versa. I also asked that Telstra’s failure to supply FOI documents in a proper and timely fashion be raised at the hearing.

The arbitration rules allowed me legal representation if Telstra had legal representation, but where would I find the money to pay a lawyer who wouldn’t buckle under the power of a corporation as huge as Telstra? At least 43 of Australia’s largest legal firms were, at that time, on the payroll of Telstra in one way or another, making them unavailable to any COT member.

In August, five months into the arbitration process, the TIO, in his role as administrator to the arbitration, informed me that the arbitrator himself was a senior partner in a legal firm that was also working for Telstra at the same time. I protested that this surely represented a conflict of interest, but the TIO assured me this was normal practice; he wanted merely that I confirm, in writing, that I had been informed of this situation. Five months too late. What could I do? I saw no choice but to continue with the arbitration and participate in the oral hearing.

I had been advised by the arbitrator that Telstra would not have a lawyer present at the oral hearing, which was a relief, and I went to the hearing believing this would be, more or less, a meeting of equals. How foolishly wrong I was. On Telstra’s side of the table sat two of Telstra’s top executives, both men with legal training. I felt like David up against Goliath. How could I not have known it would be like this?

During the hearing, I produced four-fault logbooks containing, amongst other things, the contact information of over-40s singles clients who had not been able to reach my business by phone. I asked to have these books accepted into the procedure. I had not submitted them earlier, I explained because the information had been given in confidence. I trusted that by submitting them directly into the care of the arbitrator, the information would be secure. The supplied books demonstrated conclusively that I had, in fact, lost business calls as a direct result of faulty phone service. It also detailed that I had also missed out on the opportunity to set up a singles club which would have been another business to augment my income and keep the camp going.

Telstra insisted that the information was not relevant and should therefore not be accepted. The arbitrator concurred, and I was not allowed to submit the logbooks. At this point, I finally admitted to myself that the arbitrator was not acting impartially, nor had he been from the beginning.

The FOI issue wasn’t even touched on in the oral hearing. The arbitrator was supposed to facilitate the timely provision of requested documents to me, and many times I had asked for his assistance in this, but none of my requests was fulfilled; I suspect he didn’t even pass them on. However, he did direct me to provide some 40 extra documents and pages of attachments and further particulars that Telstra had requested through the same discovery process. I complied on every single occasion, at my own expense, but, in return, I received none of the relevant documents I had requested. Something was very wrong with this whole process.

I had been fighting for justice for more than six years. Fighting a losing and costly battle, simply because I wanted to set up business in a rural hamlet that Telstra’s senior board saw no benefit in upgrading. The oral hearing made me realise that I was truly on my own in this: the arbitrator couldn’t be relied on to be independent. I warned the other COT members of what they, too, might face. We had been conned. The TIO’s office had assured us — and the Senate — that this would be a non-legalistic process. They were taking me to the cleaners.

Over the next two months before Telstra lodged their defence of my claim, I continued to search through all the material I had, looking for something, anything, to help improve my position, hoping to find the elusive discovery documents I needed.

Interim submission

In my interim claim, I submitted a list of 183 separate faults between late 1989 and early 1994. Most of the entries on this list included the names and addresses of the people who had registered complaints with me. I also submitted copies of another 42 examples of faults logged by Telstra’s own fault centres in one 8-month period alone, from January to August in 1993. On top of these, I included for assessment more than 70 letters I had received from people over the years, describing their difficulties in reaching me by phone. Some of these letters were written by Telstra’s own employees who had felt compelled to tell the truth about what they knew of my phone problems.

Yet despite this mass of material, the arbitrator's ‘independent’ technical resource unit said in their report that ‘... a comprehensive log of Mr Smith’s complaints does not appear to exist.’ The current 2015, Senator Barry O'Sullivan (Queensland National Party) can vouch that the material was submitted by his partner at the time, Garry Ellicott. What happened to it?

The list of letters of support written to me did not appear on the list of documents received by the resource unit. Presumably, they had not been seen by the arbitrator either. This was a bitter blow. What happened to them? (See Prologue/Chapter One)

The AFP and Mr Rumble

The Federal Police came to Cape Bridgewater to interview me in February 1994 regarding the fact that Telstra was intercepting COT case phone conversations. The evidence we COT members had assembled had convinced Austel and the Minister of Communications that Telstra had a case to answer. Under the Telecommunications Act 1991, Telstra was obliged to provide Austel, the regulator, with any data pertaining to the interception of telephone conversations with the four COT cases. Telstra had supplied nine audio tapes, which Austel then passed to the AFP.

The Federal Police wanted all documentary evidence I could supply of Telstra having intercepted my fax or telephone conversations, and I made copies of several FOI documents for them to take away. This was to have serious consequences for me.

At the end of June 1994, Telstra’s main 'thug' we shall call him 'dog' rang me about my complaints regarding the slow delivery of FOI documents I needed for preparing my arbitration claim. I had complained to the Commonwealth Ombudsman, who was now leaning on Telstra. But the 'dog' astounded me when he told me the slowness of delivery was due to Telstra needing to ‘vet’ the requested documents for any ‘sensitive material’ — because I had passed the material on to the Federal Police. This was preposterous on at least two counts. First, the slow delivery had been going on since my first request for FOI documents. Second, it was my civic, if not legal, duty to cooperate with any police investigation. It was certainly not a subject that a telecommunication corporation should have any jurisdiction over.

But that wasn’t all. The 'dog' then said that I would not be provided with any further documents if I continued to pass them on to the AFP. This I understood as a clear threat to withhold critical FOI documents necessary to support my arbitration claim. I assured him I would not. A few days later, I wrote to affirm this with the 'dog':

I gave my word on Friday night that I would not go running off to the Federal Police etc., I shall honour this statement and wait for your response to the following questions I ask of Telecom below.

And indeed, I had no intention of providing the AFP with any more FOI documents. When the AFP visited me again in September 1994, I showed them a copy of my letter to the 'dog', which they found very interesting as their transcript of the interview shows:

The thing that I’m intrigued by is the statement here that you’ve given 'the dog' your word that you would not go running off to the Federal Police, etcetera. Question 57, p. 12 Australian Federal Police Investigation File No/1

But I did, in July, write to inform the arbitrator that Telstra had threatened to withhold further FOI documents because I had supplied them to the Australian Federal Police to help with their investigations into Telstra’s interception of my telephone conversations. The arbitrator did not respond to my letter, nor did he comment when the issue was raised in parliament.

Threats Carried Out

On 29 November 1994, Senator Ron Boswell asked Telstra’s Legal Directorate:

Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigations?

Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?

That Telstra’s Legal Directorate had no answer for these two questions was understandable. That the arbitrator could not even ask the questions why I should be penalised for carrying out my civic duty in an official police investigation was not. Months before he handed down his award, my arbitrator's silence told me that the result would not favour my complaints of ongoing telephone and faxing problems.

But it is not just the arbitrator who let me, and the course of justice, down. No one in the TIO office, Austel, or the government was prepared to investigate either.

And what about the threats made against me by Telstra management before I went into arbitration that if I did not raise my phone complaints in writing with (Telstra's outside lawyers) then Telstra would not investigate those complaints.

Why didn't the arbitrator combine these threats made against me as a serious breach against my civil liberties as an Australian citizen?

Why weren't these threats addressed in the arbitrator's written findings?

Chapter 7

Telstra’s defence

Telstra’s response to my claim arrived on 12 December, a bound document entitled ‘Telstra’s Legal Submission (1994)’. I felt sickened before I even opened it. I still hadn’t received most of the FOI documents I had requested, and here they were, making a response based on little more than half of my submission.

That was the least of their perfidies. Here arises the infamous story of the sticky beer in the phone.

Previously, in Chapter Five, I related the story of how Mr Mathieson of Austel helped me test two different Exicom model TF200 phones on one line to determine if the ‘lock-up’ fault I had been experiencing was being caused by the phone or the phone line. These ‘lock-ups’ had meant that people on the other end of the phone could hear what was going on in my office after I had hung up. When we had completed these tests, Mr Matherson was quite adamant that we had proved that the fault was in the line because it occurred with both phones. I later acquired documents that Telstra was aware that this fault often occurs in moisture-prone areas like Cape Bridgewater.

My copy of Telstra’s Legal Submission, however, included a 29-page report titled ‘T200’. This document argued that the ‘lock-up’ problem with my phone/fax had been caused by spilt beer, found inside the phone's casing.

For the record, the phone was removed from my office on 27 April 1994 but not received into Telstra’s laboratories until 10 May 1994. According to the supplied photographs, they showed the outside of the phone was very dirty and, and according to the technicians, when they opened the phone up, the inside was ‘wet and sticky’. Analysis of the wet and sticky substance showed that it was beer and the conclusion was that the ‘beer’ had caused the ‘hook switch’ to lock up. So, my drinking habits were the cause of my phone problems. The technicians didn’t know that Mr Mathieson and I had tested two different phones on that line and found the same fault.

Moreover, when the phone left my office, it was quite clean — so how did it arrive at the laboratories in such a filthy state? If the ‘beer’ was not deliberately introduced, how did it get inside the phone? It certainly wasn’t even accidentally spilt there by me.

I put in a request with the arbitrator for a copy of the laboratory technician’s notes to see how they arrived at their conclusion. I explained I had appointed my own forensic document researcher to look over the documents. In response, I received another copy of the original report — another instance of one rule for COT claimants and another for Telstra. Only a few weeks before, the arbitrator had allowed Telstra’s forensic document researcher access to my personal diaries.

I cannot begin to explain the anger that simmered inside me. I needed to expose the lengths Telstra had gone to with this ‘beer-in-the-phone’ farce. I knew they had faked the evidence, but I couldn’t prove it. And no matter who I contacted about this — Senators, the arbitrator, the arbitrator’s secretary — no one cared to know.

Telstra was even saying ‘beer-in-the-phone’ was the cause of my ongoing fax problems, so I set about accessing Telstra’s technical analysis data covering the times when my fax problem was at its worst. This data showed that the ‘lock-up’ fault occurred in the network system since at least August 1993. So I asked the arbitrator to ask Telstra how ‘beer’ could stay wet and sticky inside my phone from August 1993 to May 1994.

In fact, this data wasn’t even necessary to prove my case. Telstra had supplied a new phone to replace the one they took away, and it was no surprise to me that, according to their own data, the lock-up problem remained after the ‘dirty’ phone was replaced. It was still a problem when I sold the business in 2001.

As to Telstra’s assertion that the telephone was ‘very dirty’, it is fortuitous that, just before the technician took the phone away for testing, I had attached a white label to the front advising staff this was the phone to use. It was perfectly clean, as the photo Telstra took when it arrived at its laboratory shows. They had failed to keep track of their deception. You don’t need a forensic document specialist to see the difference between the two photos provided by Telstra, reproduced here as (Main Evidence File No/17 and the Arbitrator File No/30). Yet I could find no-one willing to challenge Telstra on tampering with evidence in a legal process, which is a criminal act.

I had urgently and constantly requested the Exicom/TF200 laboratory testing results for my arbitration, which was not supplied by March 1995, so I lined up Paul Westwood, of Forensic Document Services to investigate my suspicion that Telstra’s TF200 report was fraudulent. The arbitrator, however, refused to appoint him, and there the matter remained, until November 1995, six months after my arbitration was declared final, when there came another instalment of the ‘beer in the phone’ saga.

In a bundle of FOI documents, a laboratory report showed that Telstra had carried out two investigations into my TF200. The second (on 24–26 May 1994) was two weeks after the first (10–12 May), and it proved that the first one — whose results had been provided to the arbitrator — was a total fabrication. Someone in Telstra had realised the first report was in some way dodgy and had authorised the second.

The second report, handwritten by Telstra laboratory staff, included graphs and photos, and it showed that when wet beer was introduced into the TF200 phone, it dried out completely in 48 hours. My phone, found to be ‘wet and sticky’ in the first report, had not been tested until 14 days after being taken from my office. There was no way it could have been ‘wet and sticky’ after two days, let alone two weeks.

So Telstra management knew, when they submitted that first report as part of my arbitration, that their second laboratory investigation had proved the first one was (to say the least) unreliable.. But even with this freshly received evidence in November 1995 (five months after the conclusion of my arbitration), the TIO refused to investigate. Receiving vital evidence which I should have received during my arbitration mattered not to those administering the COT arbitrations.

Beyond the beer in the phone deception, many other misleading statements were made under oath by Telstra’s defence unit and their technicians and included in their Legal Submission. Most disturbing of these were the signed Statutory Declarations made by some of the local technicians. They knew from experience that Telstra’s network system into the local exchange was not up to standard. These technicians who still signed these legal documents insisted everything (except for some minor, everyday type faults) had been all right during the period covered by my claim.

One local technician went so far as to say that he knew of no other business in the Cape Bridgewater area that reported the type and number of phone problems that I had. His statement even included mention of a friend, a stock farm agent, who had never had phone problems in Cape Bridgewater. When I checked Telstra’s own fault data, however, this very friend had, in fact, complained seven times in a matter of weeks during early 1994, including complaints about his fax line.

Another three local technicians stated under oath that back in 1988 when I moved to the area, the old RAX exchange at Cape Bridgewater had five incoming and five outgoing lines. Any ensuing congestion would not have affected my service much during business hours. In fact, the exchange had only four lines in and out, and Telstra’s archives show congestion was a problem between the Cape Bridgewater and Portland exchanges.

The worrying thing is that if these three technicians truly believed their story, they were not very good at their jobs. Someone should have noticed there were only eight final selectors!

My reply to Telstra’s defence, January 1995

By chance, it was during this time I saw the American movie Class Action, the story of a pharmaceutical company that knew the dangerous side-effects of one of its drugs but continued to sell the drug anyway. A chemist preparing a report for the company finds a flaw in the drug production, and the company chose to ‘lose’ the report rather than spend the money to correct the flaw—business as usual. What struck me about this story was how the pharmaceutical company swamped the lawyer representing the patients with thousands of documents at the very last minute. The lawyer had a very hard job finding a key report in time. According to the movie, this process of ‘burying’ important documents is called ‘dumping’.

Just before Christmas, and eleven days after they had submitted their legal defence, Telstra ‘dumped’ approximately 24,000 discovery documents on me — the very documents I had been waiting for to make my submission complete. And, of course, the material I needed was buried in masses of irrelevant documents.

Clearly, this was a ploy. Telstra thought that by supplying them after I’d made my submission, it wouldn’t have to defend those documents, especially given I had only two weeks in which to submit my reply to Telstra’s defence.

The festive season is always the busiest time for bookings. Fortunately, Cathy had, by this time, moved into the camp house. Without her assistance, I would never have survived through this time. Christmas slid past in a blur, and I found myself with still thousands of discovery documents to sort through. It was a miserable job.

On 6 January, I sent the arbitrator a list of procedural documents I needed to support my response, asking him to request these documents from Telstra. By my deadline, however, I was still waiting and had to file my response without them. I was at a loss to know where to turn for help. Again and again, I was faced with the same tactics. Stonewalling and silence. (The documents I requested did eventually turn up two years later.)

However, the arbitrator did respond to a letter I sent asking for more information about the Bell Canada report. In his reply on 23 January 1995, he said:

‘Telecom does not consider it has any further information of relevance in its possession.’ He asked me to respond to this within 24 hours in order to ‘be certain that there is no confusion between the parties as to the documentation which is being sought.’

I did respond, within 24 hours, asking for all the raw data Telstra had concerning the BCI testing at Cape Bridgewater. And heard no more about it. No data, no response of any kind.

My fax account shows that my response left my office and travelled to the arbitrator’s fax machine. Twelve months after my arbitration procedure was completed, I learned that Telstra did not receive this response. Then, on 28 June 1995, I learned that the arbitrator, apparently, had not received the fax either. The newly appointed TIO, wrote to me:

Dr Hughes provided you with a copy of this submission on 23 January 1995, noting that Telecom did not consider it had any further information of relevance in its possession. (The arbitrator) then invited you, within twenty-four hours to respond to Telecom’s submission. Our files does not indicate that you took the matter any further.

This level of displacement is astonishing. What happened to my fax? I might have imagined it simply got lost in the ether. In August 1995, three months after my arbitration, within a bundle of documents sent from the arbitrator’s office, was a copy of the actual letter I sent to Dr Hughes, with the fax-footprint: ‘24-01-1995 – 15:12 – FROM CAPE BRIDGE HDAY CAMP TO 036148730’. Confirming the arbitrator's office did receive it as Front Page Part One File No/2-A to 2-E shows.

Despite this irrefutable proof, the TIO’s office has refused to provide me answers to why this most important BCI letter was never acted on. Had it been, the whole outcome of my arbitration might have been different.

A visit by FHCA

In February 1995, I was visited by people from the financial arbitration unit (we shall call them - FHCA) to assess my financial losses resulting from the failures in my phone service. A representative from Telstra came separately and was delayed by poor landing conditions at the local airport. FHCA was supposed to provide a list of who they interviewed and where they went on their trip to Cape Bridgewater, and I had been led to believe that they provided just such a list to Telstra, but I never saw any documentation myself.

Under the arbitration rules, neither the resource unit, the technical advisory unit or FHCA was allowed to be alone with Telstra or with me. Still, there was not much we could do about the two-hour delay between the time the FHCA and the Telstra people arrived, except for FHCA’s solitary inspection of the general area. When the Telstra representative finally arrived, I saw FHCA’s true colours: everything I said was ignored or negated. FHCA already had fixed ideas about this case. The way they played down my business in front of the Telstra representative clearly indicated what was to come.

Bearing in mind that FHCA and Telstra were not supposed to spend time together without me, I had arranged lunch at the camp. However, my offer was declined and the others all adjourned to the Kiosk by the beach, contrary to the rules of the arbitration. What could I do? They all returned later and left together for Melbourne.

Well into 1995, I was still struggling to collate all the FOI documents I was still receiving, so late into the process, into some sort of sensible order. As I understood it, the arbitrator was not accepting any more material in support of my claim. However, I was still being charged for calls that never connected, and I hoped for another oral hearing. I phoned the arbitrator to ask for access to the technical resource unit, for their help in best presenting all this evidence of ongoing problems; I explained that I could not afford to pay my own technical adviser any longer.

The arbitrator told me that the technical resource unit would be visiting Cape Bridgewater shortly and we could discuss the presentation of my material then. Before that visit occurred, however, DMR Australia pulled out of the process and a new technical unit was commissioned by the TIO’s office: (we shall call them LS Telecommunications), run by a man who had worked for Telstra for 20 years. (DMR Australia) had pulled out because Telstra offered them valuable contracts and DMR saw a conflict of interest. I had to wonder: did Telstra deliberately set up this ‘conflict of interest’ situation? And, how could DMR pull out of a signed contract?)

Although we have addressed the following Ericsson v Lanes Telecommunications ownership in our Prologue above, it is such an important conflict of interest issues that affected most if not all the COT arbitrations. We needed to again highlight this terrible situation as we have done below.

The TIO’s letter of 16 July 1997, to William Hunt, Graham Schorer’s solicitor advised that Lane was presently involved in a number of arbitrations noting that: ‘the change of ownership is of concern’ and that...’

The first area of concern is that some of the equipment under examination in the arbitrations is provided by Ericsson.…

The second area of concern is that Ericsson has a pecuniary interest in Telstra. Ericsson makes a large percentage of its equipment sales to Telstra which is one of its major clients.

It is my view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit. …

The effect of a potential conflict of interest is that Lane should cease to act as the Technical Advisor with effect from a date shall  be determined. (See exhibit GS 296-a file GS-CAV 258 to 323)

What is just as alarming is: how long was Lane in contact with Ericsson before Ericsson purchased Lanes? Is there a link between Lanes ignoring my Ericsson AXE claim documents and the purchase of Lanes by Ericsson during the COT arbitration process?

In Chapter Seven of the AUSTEL COT Cases Report, dated April 1994, AUSTEL notes my business and a number of other COT businesses suffered major network problems associated with Ericsson AXE equipment. At point 7:40, when discussing my AXE Ericsson problems, it notes:

“AUSTEL recently became aware that Telecom (Telstra) had prepared an internal document on the subject of this AXE fault and on 21 March 1994 sought a copy from Telstra.” (See Exhibit 9 - AXE Evidence File 1 to 9)

This is the Ericsson AXE problems I wanted Lane to investigate while they were at Cape Bridgewater. Only Lane, and perhaps the arbitrator and Telstra might be able to shed some light on the subject to why neither of them would discuss these serious Ericsson AXE problems. My claim documents clearly showed the Ericsson NEAT testing equipment that Telstra used at Cape Bridgewater gave our readings that were impracticable. No one commented during my arbitration on this irritable evidence I provided to the process.

Ann, Graham and I told the TIO we did not want our claims assessed by an ex-Telstra employee and so DMR Group Canada was brought in to lead the process, with Lane merely assisting. As it turned out, however, and contrary to the written agreement given by the TIO, Lid did 99.5% of the assessments. Once more the TIO had misled the COT Cases.

One of the most important statements made by the second appointed administrator to the COT arbitrations John Pinnock, was his statement to Senate Estimates Committee on 26 September 1997 (see page 96 COMMONWEALTH OF AUSTRALIA - Parliament of Australia

stated:

Lane Telecommunications, which is one part of the technical component of the resource unit, has withdrawn from the process as a result of a conflict or perceived conflict of interest after being purchased from Pacific Star by Ericsson Australia, the major supplier of equipment to Telstra, including equipment whose performance is central to some of the claim.

What prompted Mr Pinnock to use the wording in the Senate ‘perceived conflict of interest’ when he had already written to the COT Cases lawyer stating it was his ‘view that Ericsson’s ownership of Lane puts Lane in a position of potential conflict of interest should it continue to act as Technical Advisor to the Resource Unit’?

Senator Richard Alston, the then Shadow Minister for Communications, had challenged Ericsson’s AXE equipment. In his question on notice in the Senate on my behalf, only a month before I entered arbitration (see point 25 exhibit 4-B, in file Misleading and Deceptive Conduct File 4-A to 4-L).

The government should have halted the sale of Lane because exhibits 4-E and 4-D in Misleading and Deceptive Conduct File 4-A to 4-L show Ericsson believed the problems with its AXE equipment could represent between 15 and 50 per cent call losses in some exchanges. That is a damning admission.

It’s important we use this Senate segment again even though we need to move forward two years at this point of time in our story to the 24 June 1997, so as we can view the statements made on pages 36 and 38 of official Senate - Parliament of Australia/Hansard records. These show an ex-Telstra employee and then-Whistle-blower, Lindsay White, told the committee (under oath) that, while he was assessing the relevance of the technical information which had been requested by the COT claimants, that:

"In the first induction - and I was one of the early ones, and probably the earliest in the Freehill's (Telstra’s Lawyers) area - there were five complaints. They were Garms, Gill and Smith, and Dawson and Schorer. My induction briefing was that we - we being Telecom - had to stop these people to stop the floodgates being opened."

Senator O’Chee then asked Mr White - "What, stop them reasonably or stop them at all costs - or what?"

Mr White responded by saying - "The words used to me in the early days were we had to stop these people at all costs".

Senator Schacht also asked Mr White -"Can you tell me who, at the induction briefing, said 'stopped at all costs" .(See Front Page Part One File No/6)

Mr White - "Mr Peter Gamble and a subordinate of his, Peter Riddle. That was the introduction process”.

It is clear from Mr White's statement he identified me as one of the five COT claimants that Telstra had singled out to be ‘stopped at all costs’ from proving my claim against Telstra’. One of the named Peter's in this Senate Hansard is the same Peter Gamble who submitted a false witness statement to the arbitrator concerning the failed SVT testing at my premises on 29 September 1994. The same Peter Gamble who on 6 April 1995 arrived at my Cape Bridgewater holiday camp, and together, we collected a representative from Lane from the airport.

The three of us inspected the exchanges at Cape Bridgewater and Portland and had discussions with the local technician (the one with the stock farm agent friend who never had problems with his phone), when Telstra documents show otherwise.

While the Lane representative was in Cape Bridgewater, I attempted to raise the incorrect billing issues. But apparently, the arbitrator had instructed Lane not to assess any new claim material. I was angry, for the arbitrator had assured me that if I discovered any new information among FOI documents, that information could be presented to the technical resource unit when they came to the camp. I had worked night after night to have my evidence prepared before the technical team arrived and it was clear to me that this new information clearly supported my allegations. I was so angry, to the point of excusing myself to dry reach in my residence adjacent to the holiday camp.

Neither the Telstra official Peter nor the Lane representative was prepared to comment on this evidence during my arbitration, although I was assured that the matter would be addressed. They left shortly after this, together — and without me, which was in direct breach of arbitration rules. Who knows what private conversations may have taken place between them? On so many counts, now, I was convinced that the arbitration was a sham, with the single aim of ‘shutting me up’ to stop the floodgates being opened." That was how serious the Ericsson problem was.

But after they left I had an idea. The Commonwealth Ombudsman’s Office had been supportive of my allegations concerning Telstra’s failure to supply discovery documents in a timely manner. Throughout this whole awful saga they had, again and again, proved themselves to be impartial and concerned primarily with natural justice.

The Commonwealth Ombudsman’s Office was preparing a report on Telstra’s tardy provision of COT’s discovery documents under the FOI Act, and I guessed that it would keep a copy of every document I had faxed them or they had faxed me. I, therefore, asked them to use my 1800 number for any calls to me because I guessed they would also document any calls they made concerning my complaints. I was betting that the Commonwealth Ombudsman’s Office’s tally of those calls would not match up with my 1800 account.

And indeed, two years later, on 28 February 1997, the Commonwealth Ombudsman’s Office presented a document to Telstra, covering all communications between my office and theirs, as part of their report to Telstra’s Corporate Customer Affairs Office. This report documented all faxes to and from me and all calls to and from my office — they made 43 calls to my 1800 account.

Bingo! Over this same period, Telstra charged me for 92 calls from the Ombudsman on my 1800 account. In their investigation, the Commonwealth Ombudsman’s Office confirmed these events.

So, it had been a sound idea, not that it helped my case. Telstra has still not refunded me for these wrongly charged calls at the time of writing, nor made any attempt to explain the discrepancy. Nor has this matter been investigated by the TIO’s office. However, the Commonwealth Ombudsman’s data demonstrated that incorrect charging on both my 1800 line and my fax line (in every instance, favouring Telstra) continued for at least 18 months after the arbitrator handed down my ‘award’. Since this incorrect charging was one of the issues I raised in the arbitration, and it was not addressed or included in the ‘award’, I do not consider the arbitration procedure is yet complete. I have written several letters to the TIO’s office about this matter, to no avail.

It was clear from the following statement made by Telstra in FOI folio A00354 that senior management were concerned just how bad their rural network was i.e.

“I understand there is a new tariff filing to be lodged today with new performance parameters one which commits to 98% call completion at the individual customer level.

“Given my experience with customer disputes and the BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”.

A further Telstra FOI document folio P03022 is an internal email dated 23 September noting:

“In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged (this legal firm) to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through (the person I had to register my phone complaints with) for either drafting of the reply from Telecom or for the reply direct from (this same lawyer) as our agent.”(Arbitrator File No/81)

It goes on to say:

“Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through (Telstra’ outside lawyers) with initial acknowledgement by the Region.”

Chapter 8

My Award

The arbitrator was due to hand down his award on 11 May 1995. Before that day, though, came the DMR/Lanes report on the technical losses and the FHCA financial report. The dire content of both these documents prepared me for a very poor final result.

DMR/Lanes report

There are discrepancies between the arbitrator’s and my version of Lane prepared technical consultants report titled Resource Unit Technical Evaluation Report. Mr Alan Smith. CBHC. 30 April 1995. The second paragraph on page one consists of only one short sentence “It is complete and final as it is,” (see Arbitrator File No/27). However, the second paragraph on the equivalent page (page two) of the arbitrator’s report, also dated 30 April 1993 says:

“There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.” (See Arbitrator File No/28)

There is more information in the arbitrator’s version than there is in mine. The reference to my ongoing billing problems states extra weeks are required to complete the investigation. The arbitrator did NOT provide the extra weeks.

My page two of this report (see Open Letter File No/47-A to 47-D) shows no mention of my billing claim document in my version. However, page three in the arbitrator’s version notes:

“One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

“Otherwise, the Technician Report on Cape Bridgewater is complete.” (See Open Letter File No/47-A to 47-D)

How can two identical technical reports with the same 23 technical assessments, both dated 30 April 1995 and apparently both prepared by the same consultants, have one version noting that the “… case remains open, and we shall attempt to resolve it in the next few weeks”, while the other has no mention of it still being open and needing weeks to complete?

Both technical reports state: “A comprehensive log of Mr Smith’s complaints does not appear to exist.” It did exist, as did my own Bell Canada / Cape Bridgewater and Service Verification Testing (SVT-process) at Cape Bridgewater as I have shown elsewhere on this website. Had this comprehensive log of fault complaints been provided to the technical consultants to assess, they would have had to overrule the arbitrator’s decision not to allow them the extra weeks they had requested, in order to investigate my ongoing billing faults.

On 2 May I received the TIO-technical report, dated 30 April 1995, on my business's phone faults over the period of my claim. Outrageously, this report left out more than half my claim documents. Despite numerous requests, the TIO would not investigate why both the arbitrator and the TIO consultants allowed so much of my claim material to be left out or authorised a supposedly independent technical resource unit to ignore claim documents in a legal procedure.

All the incorrect charging issues had been ignored, as had the issues of lost faxes and phone faults that continued throughout the arbitration process, which were even then still losing me business. Nor had they touched the ‘lost’ incoming calls, charged for but not received.

There were some concessions in the report. The TIO consultants did acknowledge that they had not assessed all my claim documents. And they did find a number of my claims to be proven and found against Telstra on a few issues, but to nowhere near the extent that could be reasonably expected based on my claim documents. For just one example, I cite material related to my gold phone, taken from a section covering the telephone exchange, referred to as RCM 1, which my coin-operated gold phone was connected to for most of the time. (The DMR/Lanes report drew on Telstra’s own data and records.)

2.2       There were consistent problems with the RCM system. Mr Smith’s services were carried on RCM No 1 until February 1994. This system had a track record of problems, and the RCM system components were the subject of several design corrections (Work Specifications). These issues were likely to cause a range of problems (as reported) over the period August 1991 to February 1993 (a period of 18 months) when Mr Smith’s services were transferred off RCM 1 and service improved. Specific problems caused are covered in later paragraphs (ref: 2.8, 2.9, 2.21).

            ASSESSMENT – Service was less than reasonable.

2.8       RCM 1 failure due to lightning damage. Lightning damage to communications equipment would be expected from time to time in this area. Reasonable service relates to the time taken to return the service to normal. A reasonable expectation would be repair within less than the 4 days actually taken.

            ASSESSMENT – Service was less than reasonable.

2.9      Evidence of problems with services on RCM 1 had been sufficient to cause Telecom to move the CBHC services away from RCM 1 to RCM 2 and 3. Later when the RCM equipment was examined by Melbourne staff, evidence of severe error levels had accumulated on the counters in the transmission equipment (particularly RCM1). After corrective action these severe error levels were no longer accumulating.

            ASSESSMENT – Service was less than reasonable.

So far, so good. But then the report summarises the situation:

Intermittent effects on the gold phone resulted in it being removed from RCM 1 11 days after potential cause (lightning strike damage to RCM 1). At the time of removal the actual equipment fault had not been found, although testing was continuing. This seems to have been a reasonable action and timescale under the circumstances.

ASSESSMENT – A reasonable level of service was provided.

So, while at 2.8, four days was deemed an unreasonable time-frame for repair, in the summing up they find eleven days was reasonable. Moreover, the ‘11 days’ is itself in error. The lightning strike occurred in November 1992 and the fault wasn’t rectified until late January 1993, which amounts to almost three months out of service, not 11 days.

But these are just details. In total, there were four paragraphs dealing with the gold phone, and in each one service was assessed as less than reasonable. And yet the summary assessment was positive. This is not even logical, let alone fair. It is incomprehensible that they gave the gold phone a positive assessment, since they acknowledge at 2.2 that RCM 1 ‘had a track record of problems’. My claim documented more than six years of continuous customer complaints about the gold phone, in diary notes and letters. Ah yes, these were among the documents they did not assess.

I challenged DMR/Lane’s assessment of my gold phone and supplied both Telstra and the TIO’s office with conclusive evidence, including Telstra’s own documentation, of continuing problems with the gold phone. To no avail. In December 1995, I had finally had enough, and I refused to pay the gold phone account until its faults had been acknowledged. Telstra’s response was to cut the phone off.

FHCA financial report

FHCA’s financial report was even more of a nightmare. It was incomplete; it did not show the workings, which resulted in their findings to downgrade my true losses by as much as 300 per cent in some areas. It was so incomplete, it was difficult to challenge it, for there was nothing substantial to grasp. The errors of logic were painfully elemental.

For instance, although the FHCA report acknowledged that my business accommodated social clubs as well as school groups —

‘An analysis of the clientele of Cape Bridgewater Holiday Camp shows that only 53% were in fact schools’

….(sic) it based its calculations of business losses on the lower end of my revenue base, the $30 per two overnight rates for school groups, compared to the $120 to $160 charged for the 47% that were fully catered social club patrons. Given an approximately fifty-fifty split of school and other groups, this downgraded my losses by a minimum of at least 300 per cent.

Derek Ryan, my forensic accountant, was shocked at its handling of the arbitration procedure and wrote a 39-page report to the arbitrator detailing the failings he had found in it, including actual errors. For a couple of instances:

1.         The FHCA report does not include any detailed workings so we have endeavoured to recalculate the FHCA figures given their assumptions and the base figures which were included in our report dated 21 June 1994.

            Our recalculated figures are still higher than the FHCA figures and we are unable to determine the reason for this.

2.         We believe that the FHCA report contains many inaccuracies and in the main area of loss quantification is simply wrong. The main calculation of loss has been considerably understated by an error logic.

            The error of logic appears to arise from the fact that FHCA reduce the total bed capacity by the night utilisation of 48% (to give available bed capacity) and FHCA then apply the bed occupancy rates to the available bed capacity. It is incorrect to reduce the total bed capacity by both of these factors.

Derek received no response from the arbitrator, so he contacted the project manager of my claim at FHCA, to ask how he had arrived at his findings. The project manager explained that he had instructions from the arbitrator to exclude a large amount of information from his final report. This meant the so-called independent arbitrator had forced the so-called independent financial assessors to ‘doctor’ their report. Derek wrote to Senator Richard Alston, Minister for Communications and the new TIO, to express his professional disappointment with FHCA. He considered their conduct detrimental to my claim because, since their report was incomplete, he had no firm base on which to formulate his response or, indeed, to challenge the report.

Six years later, and too late to make any difference, I received from the TIO’s office a copy of a letter dated 13 February 1996, from the Project Manager of FHCA to Mr the TIO, written evidence that the FHCA financial report was incomplete: ‘...I did advise Mr Ryan that the final report did not cover all material and working notes." I very much doubt that the TIO informed Senator Alston of this admission by FHCA.

Instead of the TIO Mr Pinnock providing this letter to me, within the statute of limitations period so I could use it in an appeal against the arbitrators’ award, Mr Pinnock concealed it until 2002 – outside the statute of limitations.

However, between 18 October 1995 and 4 October 1997, with the assistance of Mr John Wynack, director of investigations on behalf of the Commonwealth Ombudsman, I sought, under FOI, from Telstra a copy of their arbitration file on my matters. Home Page File No/82 confirms Mr Wynack did not believe Telstra’s claim that it destroyed the file. I also tried to access a copy of the same arbitration file held by the TIO office, which, as the administrator of my arbitration – under law – had to retain a copy for at least six years: until 2002. Mr Pinnock (the administrator) of my arbitration in his letter, of 10 January 1997, in response to my request, states:

I refer to your letter of 31 December 1996 in which you seek to access to various correspondence held by the TIO concerning the Fast Track Arbitration Procedure. …

I do not propose to provide you with copies of any documents held by this office. (See Open Letter File No 57-C)

It became obvious by this time of the February 1996 letter, that the TIO arbitration resource unit and the arbitrator had collaborated with Telstra in ensuring my singles club (my second business) would not be assessed as a separate business loss and did not take into account the higher revenue loss of my single club dollar, but only valued my losses at the lower tariff I charged for school groups. However, I wanted something more substantial – perhaps the actual working notes, which were removed from the FHCA report under instruction by Dr Hughes (see Open letter File No/45-E), and would have detailed my singles club information that I provided FHCA in February 1995. This single club material was never returned to me after my arbitration was finalised. The losses associated with my singles club patronage (which were never taken into account by the arbitrator) are also discussed in the Front Page Part Two page.

The Award, May 1995

On 11 May 1995, the arbitrator handed down his award. He found in my favour on a number of instances, but these were based only on old fault reports; he didn’t address the ongoing problems which I had constantly advised him of and which he was obliged by the terms of Austel’s COT Cases Report to address. The award seemed to presuppose that I no longer had any problems with my phone service and that all had been addressed and made up to standard. How he could have come to this conclusion is incomprehensible to me.

The award gave me little over ten per cent of my claim. After I had taken into account all the expenses, I accumulated just to bring the phone problems to the attention of Austel and the Senate and submitting my claim to the arbitrator, I was left with about four per cent.

It was not the case that my claim was inflated. Another accountant, Barry O’Sullivan from Freemans, once treasurer of the LNP in Queensland and now a senator, valued my claim at an almost identical amount.

I am not allowed to speak of the amount of the award, but there are things I can mention. In his award, the arbitrator said he ‘had to take into account the decrease in tourism’ in my area as one of the factors possibly contributing to lost business at the camp. This was outrageous; he was trying to explain my business losses in terms of a decrease in tourism, when all the objective evidence was pointing to an increase in tourism in my area.

Even the FHCA Report recorded an increase in numbers of tourists visiting the Portland region (from 1,396,000 in 1991/92 to 1,565,000 in 1993/94). This increase (which I referred to in my claim documents) was supported by figures supplied by the Department of Conservation and the Environment and by the Victorian Tourism Domestic Monitor. So on what conceivable grounds had the arbitrator decided there had been a decrease in tourism in the area?

Speaking of the FHCA Report, the losses as calculated were taken on board. The arbitrator made his award based on those faulty calculations.

The arbitrator appears to have based his award on the assumption that Telstra’s defence claims were undisputed fact. He says, under the heading ‘Faults Caused By Claimant’:

(c)     Telstra nevertheless maintains that most reported faults were attributable to mis-operation by the claimant or by his callers or to normal wear and tear on the equipment they were using.

(d)     In this regard I have noted for example, the Statutory Declaration by ——, a senior technical officer (grade 1) who concluded that specific fault allegations involving the claimant’s answering machine, cordless phone, and facsimile machine could only be attributable to operator error. I have also noted a statement by ——, senior Telstra technician officer grade 2, to the effect that reported facsimile machine faults were attributable to customer error.

My claim documents clearly indicated that the faults which plagued my business right through my arbitration (1994–95) and for years afterwards were NOT due to operator error. The arbitrator was treating my assertions and Telstra’s assertions completely differently. Of course, the arbitrator could not know when one of us was not telling the truth, and he could only deal with the material placed before him; but he should not have assumed, without investigation, that it was I who was the unreliable party. I find this all the more reprehensible given that I was so often forced to complain of Telstra’s deceptive or underhanded behaviour.

I knew Telstra was lying. Many of the documents cited in this book are evidence of the fact that Telstra knowingly lied in its defence of my arbitration, but at the time I needed it, I did not have the hard evidence. And even when the evidence started coming to hand, it was not accepted — not by the arbitrator, nor by the TIO, and sometimes not even by Austel. They didn’t want to know. But it was their job to want to know.

Just for the record, Telstra’s own archival material contradicts the assertions of the technical officer made under Statutory Declaration in point (d) above. The following internal fault record, in relation to my fax line (the name of the technician has been blanked due to an FOI stipulation) notes:

… rang to advise me had found several problems with the RCM system Mr Smith was previously connected to. The major problem was caused by faulty termination of resistors on the bearer block protection another problem was caused by non modified channel cards, a full report will be submitted by Len in the next week.

Both the engineer the memo was addressed to, and the National Facsimile Support Centre, experienced fax problems when attempting to send faxes to my business. As far as I can tell, the technical officer committed an act of perjury in a legal arbitration process.

Whether the TIO believed this perjured information or not is irrelevant. As administrator to my arbitration, he had a duty of care to give equal attention to my claims and concerns, and this I believe he did not do. While I mainly did not have evidence to hand in the course of my arbitration, once it did come to hand (months or years afterwards through delayed FOI documents), I brought it to the attention of the TIO and urged him to investigate. He therefore has no excuse for not being aware of the unlawful way in which this procedure was conducted and should have convened his own investigations into the matters raised.

I felt completely shattered, but I had to keep going, I had customers to deal with. Six days later, however, nature took over. In front of a group of campers, some sixty children and staff, I collapsed. An ambulance delivered me to hospital and, at first, it was suspected that I had suffered a heart attack. Five days in hospital followed and the final diagnosis was stress.

On my first day home I received a call from the FHCA project manager. He wanted me to know that he was aware things had not turned out quite as I had hoped. He believed I now had to put it all behind me, get on with my life and show ‘them’ what I could do.

I am still wondering who ‘them’ was. And why, really, he had rung. By this point, my appeal time had elapsed. Had he heard about my collapse and had an attack of conscience? During this conversation, he also informed me that the executive manager of my case with DMR was also going to ring me; and so, he did.

The Canadian DMR manager said something like: ‘I was sorry to hear you had been ill and I hope you get better soon. This has been the worst process I have ever been a party to. This sort of situation would never have happened in North America.’

I was so stunned at this statement that I later forwarded a signed Statutory Declaration of my memory of it to various government ministers. I wrote to DMR in Canada for clarification but received no response. Tantalising possibilities that went nowhere. I was clutching at straws. After so many years and such a high cost, it was hard to let go in the face of such a disappointing and unjust result.

On 23 May 1995, another 700 or so FOI discovery documents arrived. Why now? What was Telstra playing at? I could have used the material twelve months ago to support my claim. Ten days ago, I could have used them to support an appeal against the award. Now, the only way I could use them was if I took the matter to the Supreme Court of Victoria, an alternative that was entirely beyond my financial means, as Telstra well knew.

Mr Benjamin’s letter to me re late-released FOI documents again confirm that the COT Cases had no chance of ever receiving the justice the government assured us we would have if we went into arbitration with Telstra. This letter from Telstra’s Ted Benjamin, who was also Telstra’s arbitration defence liaison officer, held the position as a TIO Council member. I did not uncover this until the Senate exposed this conflict-of-interest issue during an official COT case FOI investigation conducted by the Senate between September 1997 and March 1999. In fact, the official Senate Hansard available on my website shows Mr Benjamin admitting he had never disclosed his conflict of interest as Telstra's official arbitration officer when the TIO office discussed COT arbitration matters at their monthly meetings.

Mr Benjamin failed to advise the same 26 September 1997 Senate FOI investigation that he had waited in my case twelve months before releasing the FOI documents that would have supported many unaddressed issues raised in my arbitration. On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

On opening this evidence, I remember saying to myself, if only I could have received these most relevant documents during my arbitration or even four weeks previous during my designated arbitration appeal period, I would have been able to successfully appeal part of the arbitrators' award.

However, this was wishful thinking. In the covering letter from Mr Benjamin dated 24 May 1995 under the heading “Your FOI the request of May 1994” includes the following:

“Further documents have recently come to light that fall within your FOI request of May 1994.

Copies of these documents are enclosed. At this time a table has not been prepared giving decisions in relation to these documents as it was considered by Telecom more important you receive copies of the documents now.” (Refer to exhibit AS 183 File AS-CAV 181 to 233

It was clear from some of these documents that Telstra was fully aware they had a national network billing software problem. Was this the reason Telstra withheld these relevant billing documents for the whole period of my claim?

Chapter 9

Aftermath

Among the issues not addressed in my arbitration award was that of Telstra’s incorrect charging. Five months after my award came down, Austel visited Cape Bridgewater view the documents that had not been addressed by the arbitrator. These amounted to six bound volumes of evidence I had accumulated to support my case. The Austel people appeared to be quite stunned at the six volumes and commented that they had never seen so much evidence, presented in such detail. (In fact, over the years leading up to my arbitration, I had continually provided evidence to Austel of Telstra’s incorrect charging.) Finally, they left, taking the volumes with them.

Austel allowed Telstra to address the material in the absence of any mediator such as the arbitrator and I was given no opportunity to respond. I wasn’t even officially notified of Telstra’s response, I had to wait for an FOI document, which I received by chance in 2001. The information Telstra had provided to Austel in a letter in October 1995,-), defending itself against my itemised problems, was full of false claims. Had I been given the chance to show the comparison with my data, I could have proved this. But I was not given the chance, and Telstra’s version was privileged over mine with no further investigation. What sort of a way was this to provide justice? I was denied my legal right of challenge. The faulty billings continued.

Meanwhile the daily running of the camp was almost beyond me. Cathy was handling the work almost entirely on her own. All the marketing and promotional expertise I had built up over the years was of no help: I had no reserves of energy to call on, and more importantly, perhaps, I no longer believed any good could come of it. I was in a state of despondency, stewing on my situation. How could this be happening to me in Australia in the 1990s? Wasn’t this supposed to be a democracy? It felt like something out of Kafka.

I decided I had to do something, so for a start, I requested the return of all my claim documents (as per the rules of the arbitration), and waited with growing anger for weeks before deciding to drive to Melbourne and collect them myself in August 1995. I don’t know why I expected to have my request met at this time, in truth, I was spoiling for a fight. And indeed, my documents were not ready, the arbitrator’s secretary, Caroline informed me, and the arbitrator was not available.

I was not polite. I demanded she get my documents at once and reminded her I had put in my request three months before. ‘I am not leaving this office without those documents,’ I shouted. ‘Call the police if you want to, I don’t care. You have my property and I want it back now.’ At last a young lad appeared wheeling a trolley loaded with boxes. He asked me to sort out which were my claim documents; I simply took the lot.

It was a revelation. Among the documents were some I’d never seen before, and they were very interesting, to say the least. By the rules of my arbitration, any information supplied by one party must be automatically circulated to the other party and to the TIO’s legal counsel. Among the material I took from the arbitrator’s office that day, however, was an envelope full of documents and loose papers, none of which had ever been forwarded to me.

A letter from Telstra to the arbitrator had been sent with three attachments, letters sent between Austel and Telstra, between October and December 1994. Telstra wrote:

You will note from the correspondence that Austel has requested Telstra to provide information relating to charging discrepancies reported by Mr Smith for short duration calls on his 008 service. These issues form part of the subject matter of Mr Smith’s claim under the Fast Track Arbitration Procedure.

The simplest way forward may be for Mr Smith and Telstra and yourself to all confirm in writing that this information can be provided to Austel if this meets with your approval.

Now, if this was the way to go, why didn’t I receive some indication of this from the arbitrator? I received no correspondence from him at all on this matter.

In its letter of 1 December 1994, Austel had indicated that other Telstra customers in the Portland area had also complained about incorrect charging on their 008 services, and Austel raises this concern in their letter of 8 December:

A major consideration in Austel’s pursuit of the issue raised by Mr Smith was the likelihood that these problems, if proved to exist, would almost certainly affect a number of other Telstra customers.

In direct breach of the rules, the arbitrator did not forward these letters to me during the arbitration. And, as I have already told, the arbitrator made no finding in his award regarding the substantial evidence of incorrect charging in my claim documents.

In a letter of 11 November 1994 Telstra told the arbitrator and Austel that it would address these incorrect charging issues in their defence. That Telstra failed to do so, and that the arbitrator permitted this, I believe constitutes a conspiracy between the arbitrator and Telstra. Further incriminating documents in this cache I had unwittingly stumbled upon, supported the notion that there was a conspiracy afoot.

The DMR/Lanes report revisited

Although I have addressed the discrepancies in the two varying DMR & Lane reports above, it is essentional I revisit them again: i.e.:

Among the documents inadvertently provided to me by the arbitrator’s office, I found another version of the DMR/Lanes technical report for my business. On the title page of the version I received back in April 1995, the second paragraph consists of one short sentence: ‘It is complete and final as it is.’ The second paragraph on the equivalent page of the arbitrator’s report has more to say: ‘There is, however, an addendum which we may find it necessary to add during the next few weeks on billing, i.e. possible discrepancies in Smith’s Telecom bills.’

Again, in the arbitrator’s copy (on page 3), the fourth and fifth paragraphs state:

One issue in the Cape Bridgewater case remains open, and we shall attempt to resolve it in the next few weeks, namely Mr Smith’s complaints about billing problems.

Otherwise, the Technical Report on Cape Bridgewater is complete.

This information is missing from my version of the report. Did the arbitrator and DMR/Lanes think I would forget about the billing issues if they didn’t remind me? To discover that DMR/Lanes intended to address the billing issues but mysteriously omitted this from the final version of their report just sealed my conviction that I was the victim of a conspiracy in this arbitration.

And it was here, under the heading ‘Cape Bridgewater Documentation’, I found the astonishing statement I mentioned in an earlier chapter: ‘A comprehensive log of Mr Smith’s complaints does not appear to exist.’

Were they playing games with me? I certainly had provided one! At times my life felt like one huge comprehensive log of complaints. Austel had been stunned at my volumes of evidence. I had images of my supporting documents being tossed into some ‘too-hard basket’ and I was fed up with it. Secure in their government jobs, had they any idea what we COT claimants were going through, what this meant to us?

What is so disturbing about these additions to the two conflicting DMR & Lane 30 April 1995 reports is that all 23 technical finding in each report are identical. When these two identical reports are read in conjunction with the Lane 6 April 1995 report they are likewise the same. What this shows is that Lane not only produced 99.9% of the findings in all three reports they also conveniently failed to address my ongoing billing faults. What cannot be argued after viewing the two DMR & Lane 30 April 1995 reports is that at point 3 in both: it note:

About 200 fault reports were made over December 1992 to October 1994. Specific assessment of these reports other than covered above, has not been attempted. There are 23 faults shown in both reports that were investigated, none were faults registered In the arbitrators award (findings) he notes that my claim was over a 6 and half year period from April 1988 to December 1994. This shows that DMR & Lane assessed less than two years of a six and half year claim. To save arguing which faults which year was assessed and which was not, I again repeat as I have repeated on my webpage as well as in this book. Did Lane only assess less than a third of those faults registered because to have assessed ALL of my which I might add amounted to over 600 for the six and half years (which the government regulator agrees) was one of the worse of all of the COT Cases is because to have assessed this amount of faults Lane would have had to acknowledge the Ericsson equipment was fault ridden. It appears as thought it was best to purchase Lane and all of their computer files of all of the COT Cases complaints so that there is no record in existence of the real problems the government was soon to inherit once the National Broadband Network (NBN) went into play.

Dr Hughes wrote to the TIO on 23 January 1996, noting:

“I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators Australia. I would like to discuss a number of matters which arise from these letters, including:

(a) the cost of responding to the allegations;

(b) the implications to the arbitration procedure if I make a full and frank disclosure of the facts to Mr James.”. (See Open letter File No/45-D)

It is confirmed from Chapter Three in our Prologue page (see below) that not only were these 24,000 documents not viewed by Dr Hughes and his resource unit it was he who refused me the extra time I had requested to submit two reports (into arbitration) which I had collated from these late received 24,000 FOI documents aware because they actually were supposed to have been freighted to Brisbane airport instead of the Portland airport 1,200 miles in the wrong direction (as we have stated below). Dr Hughes lies to Laurie James cost me dearly and continues to cost me dearly until these lies are investigated.

Most of these 24,000 FOI documents, I averaged that amount to be 17,000, were sent to Queensland after they were picked up from my office by Graham Schorer, COT spokesperson, who then had them couriered to COT Cases Ann Garms and Maureen Gillan in Brisbane Queensland. Those documents were all labelled Ann Garms; four of those manila folders were stamped, Gillan. How could Dr Hughes (the arbitrator in my case) and his arbitration resource unit have viewed 24,000 FOI documents when they were never submitted to arbitration.

Had Dr Hughes sidestepped John Pinnock, and instead made full disclosure of the true facts surrounding my claims, the matters I am discussing on absentjustice.com would have been addressed in 1996. By reading all of Open Letter File No/51-A to 51-G and Chapters One to Four in our Prologue page, you can decide for yourself who is telling the truth concerning these late-released 24,000 alleged-read documents.

Because the poor timeframes in the arbitration agreement did not allow for the late submission of information, such as my singles club material, Dr Hughes granted the remaining three COT cases, Ann Garms, Maureen Gillan and Graham Schorer, more that 13 months longer than he allowed me, in which to submit late-received material. Why didn’t Dr Hughes advise Laurie James of this? All four of us signed the same arbitration agreement in April 1994.

As if to rub my face in my defeat, months after the arbitrator had handed down his decision in my arbitration, I was still receiving hundreds, even thousands, of discovery documents. Some of them I had requested years ago, and would have been most useful in supporting my claim, but by this time, of course, they were of no use any more.

As these documents kept arriving I found it impossible to just shut the door on the saga and walk away. I became increasingly convinced that I had been the victim of a deliberate act of sabotage, and not only in relation to obvious things like the ‘beer in the phone’ episode. Why, I wondered, did the arbitrator not make any finding regarding all the lost faxes I had reported, both before and during the arbitration process, some of which involved valuable evidence that was somehow lost in Telstra’s network, en route to the arbitrator’s office for assessment by the resource unit and Telstra’s defence unit.

How had the arbitrator not seen through Telstra’s attempt to make me appear as a drunk by saying that my fax problems were caused by alcohol. How was it not obvious to the arbitrator that Telstra wanted the faulty line to be hidden from the resource unit in case they stumbled on the truth that it was Telstra’s lines that were causing the problems?

In 2001, six years after the fact, I received from the TIO’s office a letter Dr Hughes wrote to Warwick Smith on 12 May 1995.see Open Letter File No 55-A. In this letter, the arbitrator observes that the arbitration agreement was not a ‘credible’ process to have used in my arbitration. If Warwick Smith had passed this letter on to me at the time I could have challenged the arbitrator’s findings. How could an appeal judge rule against the arbitrator’s own advice to the administrator that the rules of the agreement used in the process ‘had not allowed sufficient time for delays associated with the production of documents, obtaining further particulars and the preparation of technical reports’? It was terribly frustrating to get this documentary support too late.

However what must be revealed in my story is the possibibility that this 12 May 1995 letter was hacked as the following information shows.

I use the Senate Hansard records of 20 September 1995, showing a very emotional Senator Ron Boswell discussing the injustices we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) experienced during our so-called government-endorsed arbitrations, in the previous chapter. It is also most important to raise the following statement made by Senator Boswell, concerning the TIO and his annual report:

“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process, making a farce of the promise given to COT members and the inducement to go into arbitration. The process has failed these people and can never give them justice – a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’.” (See Senate Hansard Evidence File No-1)

Senator Boswell’s statement that “a point confirmed by professionals deeply involved in the arbitration process itself and by the TIO’s annual report, where conclusion is described as ‘if that is ever achievable’,” shows, by the date of this Senate Hansard on 20 September 1995, the TIO had already condemned the arbitration process. So why did Mr Pinnock (TIO) and Dr Hughes, eight months later, conspire to mislead and deceive Laurie James concerning the truth of my claims, which were registered with the proper authority, i.e., the president of Institute of Arbitrators Australia?

Living with the knowledge that these lies were told by the very same person who actually had the power to investigate them, but did not, is mind-destroying. Also, mind-destroying for the new owners of my business who purchased my holiday camp in December 2001, is that regardless of them complaining to the Communications Minister’s office my local Federal Member of Parliament, and Mr Pinnock from very early in January 2002 to September 2006 (see Bad Bureaucrats/Chapter One and Chapter Four) they had inherited the same type of phone problems that I had suffered with since 1987, no one re-investigated what went wrong during my arbitration in order to stop the arbitrator from allowing his arbitration resource unit the extra weeks they stated was needed to complete their findings (see Chapter 1 - The collusion continues).

Why did Dr Gordon Hughes bring down his award on my arbitration claims when he was aware:

“…the time frames set in the original Arbitration Agreement were, with the benefit of hindsight, optimistic;

“in particular; we did not allow sufficient time in the Arbitration Agreement for inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports…

“In summary, it is my view that if the process is to remain credible, it is necessary to contemplate a time frame for completion which is longer than presently contained in the Arbitration Agreement.” see Open Letter File No 55-A).

Why did the arbitrator amend the arbitration agreement for the remaining three COT cases allowing those claimants thirteen more months to access their documents from Telstra (the defendants in all four arbitrations) than he allowed me?

The fax imprint across the top of this letter (Open Letter File No 55-A). is the same as the fax imprint described in the Scandrett & Associates report (see Open Letter File No/12 and File No/13), confirming faxes were intercepted during the COT arbitrations. The question the Telecommunication Industry Ombudsman (TIO) and the Federal Attorney-General has still not answered is:

Was this letter actually faxed to my office by the TIO. to assist me in any pending appeal process and, if not, why was such an important letter deliberately kept from me during my designated appeal period?

If I had received a copy of this letter, declaring the agreement used in my arbitration process was not credible, then of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

How could Dr Hughes even contemplate making a statement like: “…as far as I could observe, both Telecom and Smith co-operated in the Smith arbitration”, let alone decide to include it in his 12 May letter, when he and the Senate had already been warned that Telstra was threatening to withhold further relevant documents from me, simply because I had agreed to assist the Australian Federal Police with their investigations into Telstra’s unauthorized interception of my phone conversations and faxes and, even worse than that level of Telstra treachery, Telstra then actually carried out those threats? And what about the advice that both the arbitrator and Warwick Smith had received on 18 April 1995 (see above), which stated clearly that there had been ‘forces at work’ that had ‘derailed’ my arbitration? This 12 May statement shows that Dr Hughes was quite clearly choosing to protect those ‘forces at work’, regardless of the serious problems that created for me.

Interception of this 12 May 1995 letter by a secondary fax machine:

Whoever had access to Telstra’s network, and therefore the TIO’s office service lines, knew – during the designated appeal time of my arbitration – that my arbitration was conducted using a set of rules (arbitration agreement) that the arbitrator declared not credible. There are three fax identification lines across the top of the second page of this 12 May 1995 letter:

The third line down from the top of the page (i.e. the bottom line) shows that the document was first faxed from the arbitrator’s office, on 12-5-95, at 2:41 pm to the Melbourne office of the TIO – 61 3 277 8797;

The middle line indicates that it was faxed on the same day, one hour later, at 15:40, from the TIO’s fax number, followed by the words “TIO LTD”.

The top line, however, begins with the words “Fax from” followed by the correct fax number for the TIO’s office (visible

Consider the order of the time stamps. The top line is the second sending of the document at 14:50, nine minutes after the fax from the arbitrator’s office; therefore, between the TIO’s office receiving the first fax, which was sent at 2.41 pm (14:41), and sending it on at 15:40, to his home, the fax was also re-sent at 14:50. In other words, the document sent nine minutes after the letter reached the TIO office was intercepted.

If I had received a copy of this letter declaring the agreement used in my arbitration process was not credible, then, of course, I would have appealed the arbitrator’s award. After all, how could an appeal judge argue against the arbitrator’s own findings that the agreement was not credible, even though he used it anyway?

Interception of this 12 May 1995 letter by a secondary fax machine is discussed in more depth in our Australian Federal Police Investigations page

And at worse fabricated,

On 15 July 1995, two months after the arbitrator prematurely brought down his findings on my claim, AUSTEL’s previous General Manager of Consumer Affairs, aware that the arbitration process had not addressed my claims concerning the impracticability of CCS7 being used in the BCI testing at Cape Bridgewater. Ms Amanda Davis provided me with an open letter noting: noting:

“I am writing this in support of Mr Alan Smith, who I believe has a meeting with you during the week beginning 17 July. I first met the COT Cases in 1992 in my capacity as General Manager, Consumer Affairs at Austel. The “founding” group were Mr Smith, Mrs Ann Garms of the Tivoli Restaurant, Brisbane, Mrs Shelia Hawkins of the Society Restaurant, Melbourne, Mrs Maureen Gillian of Japanese Spare Parts, Brisbane, and Mr Graham Schorer of Golden Messenger Couriers, Melbourne. Mrs. Hawkins withdrew very early on, and I have had no contact with her since.

The treatment these individuals have received from Telecom and Commonwealth government agencies has been disgraceful, and I have no doubt they have all suffered as much through this treatment as they did through the faults on their telephone services.

One of the striking about this group is theur persistence and enduring belief that eventually there will be a fair and equitable outcome for them, and they are to admired for having kept as focussed as they have throughout their campaign.

Having said that, I am aware all have suffered both physically and their family relationships. In one case, the partner of the claimant has become seriously incapacitated; due, I beleive to the way Telecom has dealt with them. The others have al suffered various stress related conditions (such as a minor stroke.

During my time at Austel I pressed as hard as I could for an investigation into the complaints. The resistance to that course of action came from the then Chairman. He was eventually galvanised into action by ministerial pressure. The Austel report looks good to the casual observer, but it has now become clear that much of the information accepted by Austel was at best inaccurate, and at worst fabricated, and that Austel knew or ought to have known this at the time.”

After leaving Austel I continued to lend support to the COT Cases, and was instrumental in helping them negotiate the inappropriately named "Fast Track" Arbitration Agreement. That was over a year ago, and neither the Office of the Commonwealth Ombudsman nor the Arbitrator has been succsessful in extracting information from Telecom which would equip the claimants to press their claims effectively. Telecom has devoted staggering levels of time, money and resources to defeating the claiams, and there is no pretence even that the arbitration process has attemted to produce a contest between equals.

Even it the remaining claimants receive satisfactory settlements (and I have no reason to think that will be the outcome) it is crucial that the process be investigated in the interest of accountabilty of publical companies and the public servants in other government agencies.

Because I am not aware of the exact citrcumstances surronding your meeting with Mr Smith, nor your identity, you can appriate that I am being fairly circimspect in what I am prepared to commit to writing. Suffice it to say, though, I am fast coming to share the view that a public inquiry of some discripion is the only way that the reasons behind the appalling treatent of these people will be brought to the surface.

I would be happy to talk to you in more detail if you think that would be useful, and can be reached at the number shown above at any time.

Thank you for your interest in this matter, and for sparing the time to talk to Alan.

Playing politics

David Hawker, my local federal MP, had supported me, and the issue of rural telecommunication services, since 1992. In 1995, before the Liberal government came into power, he arranged for some of the COT members to meet with the then Shadow Minister for Communications, Senator Richard Alston, in his office in Canberra.

Senator Alston had taken an interest in the COT cases from very early on, and in this meeting he was supportive of my claims regarding the unethical conduct by various parties associated with the administration of my arbitration, including my claims that Telstra had been listening in to my private phone calls during the arbitration. Senator Alston had been under the same illusions as the COT four that the arbitration would be a non-legalistic and fast-tracked process. He expressed his concern that FOI discovery documents showed that Telstra knowingly used flawed and fabricated test results to support their defence of my claim, and that they had allowed the 10 November 1993 flawed BCI Addendum Report on Cape Bridgewater to remain in the public domain.

After the Coalition victory in 1996 Senator Alston became the Hon. Senator Richard Alston, Minister for Communications and the Arts. At this point his office asked me to supply them with a full report on my claims and the allegations I had made against Telstra over the years, along with any allegations I had about the conduct of the arbitration. I set about producing the report they needed: just to produce a chronological listing of events took 82 pages which I bound into a book, supported with a separate volume of attachments indexed to the main document. A copy of this report was sent to Senator Alston and another to the Commonwealth Ombudsman’s office.

Regrettably, since Senator Alston was appointed to a position which gave him the power to instigate a full inquiry into the many issues raised by the COT cases, nothing more happened in this matter beyond a letter of acknowledgement in September 1996.

The Exicom T200 and beer-in-the-phone reprise

Another FOI document received too late proved that Telstra was well aware of the moisture problems associated with the Exicom T200 that resulted in billing faults exactly such as I had experienced, faults that my arbitrator and Telstra refused to address in my arbitration. This same document, an internal memo, suggests that Telstra re-deployed phones they knew were faulty and returned them back into service to other unsuspecting customers, because they would ‘still have to be deployed in areas of lower moisture risk.’ The memo is not dated, but other information in it puts it around 1993–94.

Given that these phones were known to malfunction in moisture-prone areas, I cannot fathom why Telstra thought they would work in a coastal area such as Cape Bridgewater. Or why, when I began to complain of the billing problems they didn’t simply say, ‘Oh, sorry Mr Smith, this is not the right phone for you.’ What a lot of trouble that would have saved.

I wonder how many of these faulty T200 phones are still being used by unsuspecting Telstra customers in places of high moisture content, for instance, fish and chip shops, bakeries, industrial kitchens, or heated swimming pools etc. — and how many of these customers are incorrectly charged for calls they did not receive, as I was for so long.

I also wonder about the legality of redeploying products known to be faulty — though it seems the Telstra Corporation is exempt from the Trade Practices rules covering other corporations and businesses in Australia.

After so many let downs, imagine my happiness when, in November 1995, six months after the arbitrator handed down his award, I received in another bundle of FOI documents, the laboratory reports I mentioned in Chapter Seven, in which Telstra carried out tests on my T200 fax/phone at their laboratory to see how long beer would stay wet inside the phone casing. To read that Telstra laboratory staff themselves had proved that beer could not have stayed wet and sticky for 14 days (the time between the phone leaving my premises and it arriving at the laboratory) was incredibly exciting.

It was already evening time, but in the heat of the moment, I rang the arbitrator’s home number. His wife answered and told me he was overseas and not due home for some days. Caught on the back foot and thinking it likely the arbitrator had discussed at least some aspects of my arbitration with his wife, I imagined that if she knew who was calling, she might be afraid I was going to be troublesome. On the spur of the moment, I gave her another name, one I knew the arbitrator was familiar with — that of the FHCA project manager. According to my telephone account, this call was made at 8.02 pm on 28 November 1995 and it lasted 28 seconds.

Later, I told the TIO about my exciting find, and how I had I had tried to contact the arbitrator to pass on the news, explaining also why I gave Mrs Hughes the FHCA project manager’s name instead of my own, so as not to alarm her. I asked him what he would do with this proof that Telstra had fabricated the beer in the phone story. The TIO responded flatly that my arbitration had run its course and he did not intend to involve his office in any further investigation. He said I should go to the Supreme Court of Victoria if I wanted to take it further.

The Institute of Arbitrators

Since the TIO would not act, it was time to find some other way of addressing the unethical conduct of Dr Hughes, the arbitrator. On 15 January 1996 I addressed my complaints to Laurie James, President of the Institute of Arbitrators Australia.

I had a number of complaints regarding the fact that the arbitrator had not operated within the ambit of the Arbitration Act. I provided evidence that the TIO and Telstra had also met in private, without a representative of the COT group, during the planning stages of our arbitration. The arbitrator and his resource unit also met with Telstra in private, before we signed for the arbitration. These meetings broke the rules of arbitration, and we will never know what was discussed in them. We can assume, however, that it was not to the advantage of COT members.

Also, when the TIO and his legal counsel began to pressure the COT four into abandoning the commercial process (the FTSP) and signing for arbitration (the FTAP), no-one informed us that the appointed arbitrator was not graded by the Institute of Arbitrators. I learned this from Mr Nosworthy, President of IAMA in 2001, who told me Dr Hughes was not a graded arbitrator at the time of my arbitration. In fact, while he was engaged with the COT cases, Dr Hughes sat for, but failed, his grading examination.  Technically, he was not qualified to handle any arbitration, let alone one that was so complex and far-reaching as ours. This information was relayed to Senator Alston and the TIO, but to no effect, and no-one has yet satisfied me as to why an unqualified arbitrator was chosen to oversee such a vast process and why he was permitted to continue, after failing his examination.

Mr James worked quickly, for on 23 January 1996 Dr Hughes wrote to John Pinnock (the new TIO) under the heading ‘Institute of Arbitrators – Complaint by Alan Smith’ saying:

I enclose copy letters dated 18 and 19 January 1996 from the Institute of Arbitrators. I would like to discuss a number of matters which arise from these letters, including

the cost of responding to the allegations

the implications to the arbitration process if I make a full and frank disclosure of the facts to Mr James.

I would give a lot to see what that ‘full and frank disclosure’ might consist of. I couldn’t ask at the time, however, as I did not get a copy of this until 2001. What I did get next was something shocking and upsetting.

In February 1996 I received a letter from the President of the Institute of Arbitrators, Mr Laurie James, with a copy attached of a letter he had received from the TIO. The TIO had written to Mr James to say that my complaints about the arbitrator were ill-founded. The TIO backed up this assertion by relating a very different version of the events I have just described. In his letter, the TIO stated falsely that I had rung the arbitrator’s home at 2 o’clock in the morning. He also told Mr James that I had given a false name.

With its implications that a man who rang anyone at the socially unacceptable time of 2 am was possibly unstable, or a threat to the peace, this seemed like a gratuitous attempt to blacken my name. Why else would the TIO take an innocent incident and try to turn it into something sordid? The TIO is supposed to be unbiased. He must have known that his correspondence would bring my character into question. And if he was prepared to do this in my arbitration, what about the arbitrations still going on for other members of the COT group. Who was he actually supporting — the Australian public or the telecommunications carriers?

The TIO had also forwarded a copy of this letter to the arbitrator, who would have asked his wife for her version of the incident. I believe that, all things being equal, his wife would confirm that I rang at 8 pm and that I was perfectly polite. But who knows, perhaps the arbitrator and the TIO cooked up the 2 am version between them.

Mr James was not inclined to follow through with my complaint, so the TIO had achieved his aim.

So that was the consequence when I thought I had found dynamite with the confirmation that someone within Telstra had tampered with my Exicom T200 phone and that Telstra staff had perjured themselves in Statutory Declarations defending their beer-in-the-phone story.

I had thought that anyone interested in justice would feel no option but to review my case. Instead, the person whose position it was to address this, chose instead to try to discredit me. And it was not the only attempt. I am not sure who stooped lower, the TIO or the arbitrator, as the concluding part of this story illustrates.

It was not until 2001, five years after the event, that I received from the TIO, through FOI, a copy of a letter dated 13 February 1996, written by John Rundell of the Technical Resource Unit to Mr Pinnock (TIO), which sheds some light upon the fate of my complaint to the Institute of Arbitrators. This is the story of the second serious attempt to discredit me.

In the letter, Mr Rundell acknowledges that the FHCA financial report was incomplete (‘… the final report did not cover all material and working notes’  but he then goes on to make an astonishing assertion that the Victoria Police Brighton CIB was about to question me in relation to criminal damages to his property.

In fact, the Victoria Police Brighton CIB never considered me a suspect in relation to any crime, and letters held by the TIO’s office confirm this. Nonetheless, John Rundell’s letter to the TIO implied that I was about to be charged for criminal damage. What is more, those false allegations were then sent on to a third party, Dr Hughes (the arbitrator), who then attached a copy of the letter in his response Mr Laurie James, President of the Institute of Arbitrators Australia, who was investigating my complaints.

At the very least this constitutes massive defamation of character. And it very likely prejudiced Mr James against my case. Of course, I had no idea of the existence of this letter at the time. Over the years since I became aware of this defamation I have made continuous complaints to the TIO and relevant government ministers. None of this has resulted in any apology or retraction, but that should not surprise the reader.

Senate Estimates

This has been a highly legalistic arbitration: by June 1997, Telstra had paid more than 18 million dollars to defend itself against the COT claimants. What chance did we have when we had to rely on Telstra documents to support our claims and the person in charge of distributing those documents also sat on the council of the TIO?

During question time at a Senate meeting on 24 June 1997, Telstra was questioned regarding its tardy supply of FOI documents to the COTs. By this time the Commonwealth Ombudsman had completed her findings relating to Telstra’s administration of the supply of discovery documents to Ann Garms, Graham Schorer and myself. She found against Telstra. This finding resulted in a Senate review of the cases of Graham and Ann, but not of my case. It has never been explained why I was left out, though it has been suggested that my ongoing phone problems represented a can of worms no-one wanted to open in public.

In this same Senate meeting, the Shadow Minister for Communications, Senator Chris Schacht, raised the issue of the $18 million that Telstra had paid out in legal fees during the COT arbitrations in contrast to the $1.74 million that the COT claimants had collectively received to that point:

The thing that really is annoying is that the lawyers got millions, you paid them millions to go through all of this process and the claimants got $1.7 million — we know who won this case.

… you went through a process of hanging people out to dry for a long time.

Senator Carr, Labor, then said to Telstra’s Graeme Ward:

I have a document here, headed up ‘TELSTRA SECRET’, which suggests that some time ago you were being advised that Mr Smith was likely to secure a substantial payment through a legal arbitration process. Is it not the case that probably it would have been in your commercial interest to have settled long before you did?

Telstra’s Ted Benjamin, who had been in charge of the COT arbitrations and responsible for supplying us our FOI discovery documents, was also a member of the counsel to the TIO’s office. He replied to Senator Carr:

We could not reach a final settlement with Mr Smith before the matter went to arbitration. It was then taken over by Austel in its investigation into what became the COT Report.

A neat side-step. And the issue was left basically unanswered.

The question of whether Telstra’s withholding of FOI documents was a deliberate ploy occupied a Senate Estimates Committee from September 1997 to January 1999. By that time there were 21 COT cases, and five of these, including Ann Garms and Graham Schorer, were chosen for investigation. If it was found proved with these five that Telstra had acted deliberately such that their arbitrations had been compromised, then it would be assumed true for the remaining COT cases.

On 26 September, the TIO Mr Pinnock was called before the Senate Estimates Committee to answer questions about the conduct of the arbitrations. He made an extraordinary statement:

… the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.

This was an incredible reversal from the TIO’s office, and one that should have given me joy. Under oath, he was finally agreeing with what I had been saying for so long.

The Senate investigation proceeded over the next 20 months and delivered a decision that Telstra had indeed deliberately withheld FOI documents to the detriment of the COT claimants. But while this was proved for the five test cases, the decision to pass on the benefits to the remaining COT cases was reversed. The five won a total award of several million dollars between them from this Senate Inquiry, and the other sixteen got nothing.

On 23 March 1999, when this Senate investigation was over, the Chairman of the Committee, Senator Alan Eggleston, made a press release:

A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information. Senator Eggleston said: ‘They have defied the Senate working party. Their conduct is to act as a law unto themselves.’

In fact the TIO Board and Council had hidden two important issues from the Senate Estimates Committee: (1) The Board and Council knew that the TIO-appointed Resource Unit also stopped the COT claimants from receiving relevant documents during the arbitration process and (2) The TIO and the defendants (Telstra) let this happen by allowing the Resource Unit to decide which documents they thought were relevant for the arbitrator to view and which they thought should be withheld from the process.

Most Disturbing And Unacceptable

On 27 January 1999, after having also read my first attempt at writing my manuscript absentjustice.com, the same manuscript I provided Helen Handbury, Senator Kim Carr wrote:

“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable.” (Arbitrator Evidence File No 66)

The Rights Of Citzens

Senator Kim Carr also criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, noting:

“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”

And addressing Telstra’s conduct, by saying:

“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long". (See parlinfo.aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11)

Senator Mark Bishop’s statement

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.

“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (Senate Hansard)

The Senate intervention to stop this unlawful conduct only assisted the five ‘litmus’ COT cases (four) had not yet reached arbitration. The remaining 16 COTs had already been through their government-endorsed processes, but without the bulk of their FOI requests/evidence. By the Senate not assisting the remaining 16 to obtain their FOI requests, those COTs were unable to secure settlements that reflected their true losses. Why were the 16 cases that had gone through a – disputable – arbitration process not even looked at? This is certainly appalling discrimination by the LNP government. And our past and current government bureaucrats have the audacity to downplay what Julian Assange tried to do for the COT cases, i.e, his fellow Australian citizens.

Why didn't the Australian government pressure Telstra to compensate all of the 21 COT Cases and not just the five COT cases Telstra withheld or destroyed their requested arbitration documents? It is clear from the following Google link (see What are the risks of hiding evidence during legal discovery?)

I reiterate why were only 5 of the COT Cases were provided with their previously withheld arbitration documents and not the remaining 16 COT Cases. Those five litmus test cases also received millions upon millions of dollars in punitive damages for having suffered such a terrible arbitration. When those same 16 COT Cases received no compensation

Telstra's Unlawful Witholding Of Documents

Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination by the Commonwealth were fully investigated.

At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:

“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56).

Senator Len Harris was distrurbed that A fair resolution of those sixteen COT cases had never been resolved (see In the office provided for me, that because much of the FOI documentation was so blanked out that it was hard to march the correct correspondence to the Telecom Header Sheets in question.

The moment I brought to their attention the irregularities regarding the two faxes in question there was an immediate urgency to terminate my presence and I was asked to leave at 40.40 pm".

This was the reason I phoned Detective. Superintendent Jeff Penrose of the Australian Federal Police and described the situation to him. Mr Penrose responded with words to the affect that:

‘… it is illegal to destroy documents during a discovery process’ and went on to explain that my attendance at Telstra’s office certainly qualified as an official ‘discovery process’.

Chapter 10

And the faults continue

The issues drag interminably on. Are they waiting for me to give up and go away? My faxing problems have never stopped. If documents are sent by courier and don’t arrive, we have recourse through the courier company. If documents sent by fax through Telstra’s network are lost however, it would seem there is no recourse.

The missing faxes

In June 1998 I asked five different businesses to write about the fax problems they encountered with me. Hawker’s Secretarial Service in Portland said, ‘… being the only secretarial service in Portland, my fax machine is a valuable tool in my office and as to date I have never experienced problems with any of my other clients.’ These letters were passed to the TIO’s office. But it is not just the ongoing problem that bothered me. It is the custom I lost.

On 1 July 1998 I wrote to the Deputy TIO, Mr Wally Rothwell regarding faxes that had been ‘lost’ in transit in the course of my arbitration, or which were delivered, but were unreadable. Since the time of my arbitration I have been trying to get this issue addressed.

I copied on to Mr Rothwell a number of faxes returned to me from the arbitrator’s office once the arbitration had been completed. These faxes had arrived at the arbitrator’ office as only half pages or as blank pages. There were also bank statements I faxed to Ferrier Hodgson, which arrived at their office with no details showing. I asked the TIO how FHCA could have assessed my financial position correctly when some of the documents I sent them arrived blank. Predictably, there was no response from the TIO.

On 30 July 1998, the Australian Federal Police wrote that they were unable to help me track down my missing faxes, and on 18 August 1998, the Attorney General wrote that he too could not be of assistance. If the Federal Police and the Attorney General’s office are not concerned about the loss of legal documents in transit via a fax machine, then who can help me?

I also wrote to the TIO and the Minister for Communications, asking them to instruct the arbitrator’s office and the TIO’s legal counsel to supply me with a copy of the ‘missing’ claim documents, under the rules of the arbitration which Telstra and I both signed.

Points 6, 7.2 and 25 of the FTAP rules state:

6.    A copy of all documents and correspondence forwarded by the Arbitrator to a party or by a party to the Arbitrator shall be forwarded to the Special Counsel. A copy of all documents and correspondence forwarded by a party to the Arbitrator shall be forwarded by the Arbitrator to the Special Counsel and the other party.

7.2 The Claimant shall within 4 weeks of receipt of written notice from the Administrator pursuant to Clause 5 that he has received completed and signed Request for Arbitration forms send to Telecom and to the Arbitrator in duplicate, its Statement of Claim and any written evidence and submissions (‘the Claim Documents’) in support of that claim.

25   Within 6 week of publication of the Arbitrator’s award, all documents received under this Procedure by the parties, the Administrator, the Resource Unit and/or the Arbitrator and all copies thereof, shall be returned to the party who lodged such documents.

If they adhered to the FTAP rules, Telstra and the TIO’s legal counsel should have had copies of everything I sent to the arbitrator, whether I sent it by mail or fax. And according to the same rules, the TIO was bound to instruct Telstra or their legal counsel to supply me with the ‘missing’ documents. The only conclusion I can draw from this is that the TIO must be aware that the majority of my claim documents never reached Telstra’s defence unit or the legal counsel in the first place, and therefore knows it is pointless to direct them to return these documents to me. Very little in the actions of the TIO has reassured me or the other members of COT as to the capacity for impartiality of that office in its role as standing between us and Telstra.

On 26 February 1999, I sent three faxes to COT member, Graham Schorer: the first and third of these arrived at Graham’s office as intended but the second did not. Graham’s fax journal shows the two faxes which were received, marked with an arrow. According to my Telstra account, I was duly charged for the long-distance transmission of all three. If I hadn’t happened to phone Graham to discuss the document which didn’t arrive, we might never have discovered it had ‘gone walkabout’ between our faxes. Now most people would accept a single incident like this as just a ‘blip’ in the system. Unfortunately this has happened on too many occasions, and it was happening back in 1994 over the months during which I was lodging my claim with the arbitrator.

We also have to wonder how many other similar occurrences have not been noticed over the years and how many individual or business people send faxes and never discover that they didn’t arrive at their intended destination and so happily pay their Telstra accounts.

Still trying to get my original claims addressed

On 17 February 1998, I sent the TIO a bound submission detailing my continued and ongoing incorrect charging by Telstra. The submission started with the beginning of my arbitration and included copies of pages of the transcript of the oral hearing conducted on 11 October 1994 with Telstra, the arbitrator and myself, and a representative of the TIO, showing that my claim documents relating to incorrect charging were accepted into the arbitration procedure. There were several pages explaining the significance of the material I was submitting, so many that, on page 94, the arbitrator is reported as stating during the course of the oral hearing, ‘I don’t think we need any further examples.’

Yet even with this mountain of evidence the TIO still stated that the problem began only ‘at a late stage of the arbitration process.’ It’s as if it would stick in his throat to actually present my case on its own terms, impartially. On the positive side, the TIO did respond. He asked Telstra whether they agreed ‘that this matter was not addressed’ in my arbitration. Wake up! I felt like yelling, not for the first time. Of course, at the time of writing this, I have yet to receive Telstra’s response. I’m not holding my breath. I can only suppose that a judgement against Telstra in the matter of incorrectly charging their customers on a regular basis would set a dangerous precedent. I pay the price, while Telstra avoids facing the issue at all costs. And behind Telstra stands the TIO, and Austel, and the government.

In 1998 I also sent the transcript of the 1994 oral hearing to the TIO and the Minister for Justice, alerting them to how, at that time at least, the arbitrator agreed to address Telstra’s tapping of my phone lines and listening to my private phone calls during the arbitration procedure.

Arbitrator to Smith: ‘... effectively any reference in your claim documents to date regarding unlawful phone tapping will be treated by me and the resource unit as unsubstantiated and therefore not relevant for the purpose of determining whether you’re entitled to compensation.’

Me: ‘No, I will leave it in the claim because —’

Arbitrator: ‘You understand if you leave it in your claim, Telecom is entitled to ask what is the basis for this allegation?’

Me: ‘Right, Okay, yes, all right.

Arbitrator: ‘So you want to leave the allegation in?

Me: ‘I will leave the allegation in.’

But these claims were not addressed, either in my award, or by the TIO, or indeed by the Minister.

If Telstra is allowed to get away with eavesdropping on businesses while it is government owned, then what does the future hold for Australia once it is completely privatised, with no government control at all? Even now, how many other businesses are having their private matters watched? How many overseas investors are being ‘bugged’ without their knowledge? How many businesses fighting a take-over bid have their private information passed around to whoever might benefit from a bit of inside knowledge? How many faxes are copied to someone other than the intended recipient?

An article on electronic security in the Melbourne Age of 10 October 1998 reported that it was possible for anyone with access to Telstra’s network to monitor faxes as they are sent and to keep copies without the sender’s knowledge. This article also pointed out that telephone operators can eavesdrop on calls and Telstra can access all calls, though this is supposed to be under strict controls.

After three more years of telephone complaints after my award was handed down — of line-locks, dead-line problems, missing faxes and the 1800 billing problems — Telstra finally sent two representatives to see me at Cape Bridgewater on 14 January 1998. By this time I had put together a mass of evidence consisting largely of Telstra’s own data and my itemised accounts. The two Telstra representatives explained they were liaising with the TIO’s office regarding my complaint that my arbitration had not addressed a number of issues raised in my original Letter of Claim. They considered my evidence sound and took it away with them. In their notes of this meeting they said:

… Mr Smith produced various printouts of CCAS data in comparison with his Telstra accounts. In many instances the calls add up however, in some cases there appeared to be differences in the duration of the call time. I note that the examples given by Mr Smith at the meeting spanned the period of the Arbitration and after the conclusion of the Arbitration.

Senator Alston wrote to David Hawker my Member of Parliament on 27 February 1998 and again on 29 May 1998 telling him that Telstra was examining the documentation with a view to resolving my concerns. Things were looking promising, I thought.

Then in a letter dated 9 June 1998, the Deputy TIO referred to an intended meeting with the arbitrator, in order to ‘clarify whether he did consider the 1800 issue during the arbitration.’ Pay attention, I felt like shouting. There had never been any doubt about this. A 15 November 1995 letter from the TIO-appointed Arbitration Project Manager to the TIO  was quite clear that NONE of the billing issues, including the 1800 issues, were ever investigated during my arbitration. And on 3 October 1995 Austel wrote to Telstra, with a copy to the TIO, asking why the billing issues I raised during my arbitration had NOT been addressed.

In July 1998 seven letters passed between the TIO office and me,  all proving that many of my claim documents which my Telstra account shows were faxed to the arbitrator’s office in 1994–95 had either not arrived, or had arrived in a damaged state. Yet on 25 August 1998, Mr Pinnock (TIO) wrote to me:

The only issues that I am considering, as the former Administrator of your arbitration, are the alleged overcharging for your 1800 service and matters pertaining to your Gold Phone service, and whether they were considered in the final award.

There is no mention of my complaints of lost faxes, not even an explanation of why he is not considering them. I have to wonder, is there some reason behind this omission? My submission was very clear about the importance of the issue of the lost faxes. Why was he avoiding it? Mind you, nor did he address the issues he said he was considering.

In June 1996 I had written to advise the TIO that four 1800 billing claim letters addressed to the arbitrator had not been provided to me during my arbitration. On 2 August 1996, in response to that letter,  the Resource Unit admitted to the TIO and the arbitrator that they had indeed withheld these letters. In 2002 I received back a copy of my letter to the TIO dated 26 June 1996, and found that the TIO had added a handwritten note at the bottom of this letter, stating:

‘These are quite serious allegations. We need to respond to specific letters Smith says weren’t forwarded or received and provide answers on each.’

I have sent some sixty to seventy letters to the TIO since 1996, asking his office to follow up on these ‘serious allegations’ (which are in fact not allegations, but the truth). The TIO’s office has refused bluntly, and reminds me that if I am not satisfied I can take them and the arbitrator to court, well aware that I do not have that sort of money.

I call this criminal collusion. What is more, as I have already shown, Austel and the TIO allowed Telstra to secretly address these same four 1800 billing documents in October 1995, five months after the end of my arbitration. Had the TIO and the defendants concocted some deal so these billing documents could be hidden from the arbitrator and me? And why? So that Telstra could address them outside of the arbitration, compromising my legal right to challenge Telstra’s defence of these documents.

Telstra’s CEO, Frank Blount, admitted the breadth of this 1800 billing problem in his 1999 book Managing in Australia. Not only the billing, but most aspects of the performance of the 1800 ‘product’ were, as the book notes, ‘sub-standard’, and Blount’s response, when apprised of this, was one of ‘shock’.

And Telstra management certainly knew this four years earlier when they knowingly supplied the government regulator with grossly inaccurate information in my arbitration, and indeed when the Resource Unit’s technical consultants refused to investigate the evidence regarding my 1800 line.

Finally I have had enough

In June 2001 I put the business up for sale and in December that year Darren Lewis took possession. Cathy and I kept the property next door. I believed that the problems with Telstra had become a personal vendetta and that they would disappear when I was no longer involved. Alas, that was not the case.

From March 2002, Darren Lewis wrote numerous letters to the TIO, complaining of fax related problems of a similar nature to those I had suffered. Mr Lewis received the support of the Hon David Hawker, who wrote to him in October 2002:

Given the serious communications problems encountered by the former proprietor of your business (Mr Alan Smith), I intend to make representations on your behalf directly to the Federal Minister for Communications and Information Technology.

In November 2002 the Channel 9 Sunday Program featured the camp in a story on various COT cases and Telstra. Following the program, I received a letter from a Barry Sullivan:

After viewing the Sunday programme, I realise the similarities your business and others had with Telstra ten years ago with the similarities our building business had, when we lived at Bridgewater. During a period of time between the late 1980s and early 1990s we had considerable amount of difficulty with our phone. Our phone problem had such a negative effect on our building business over a period of time that our work dried up.

I had not come across Barry Sullivan’s case during the time of my arbitration. In fact, Austel had passed on to Telstra information regarding other Cape Bridgewater residents who were experiencing ongoing telephone problems similar, to the ones I had experienced but kept this information from me (and presumably the arbitrator) during my arbitration. By the new millennium though, the issue was well and truly public. Under the headline ‘Plans afoot to attract tourists’ the Portland Observer wrote on 8 August 2003:

The Cape Bridgewater Tourist Association is planning a major swimming event each New Year’s Day in a bid to attract tourists to the area. At their meeting on Tuesday, association members also expressed continuing problems with the telecommunications into the area.

One operator Denis Carr said he had been told Telstra was rectifying the problem.

I hope he wasn’t holding his breath.

Meanwhile, things were not improving for Darren Lewis. In November 2002 an article in the Portland Observer noted:

The telecommunications problems which plagued former Cape Bridgewater Holiday Camp operator Alan Smith have continued to beset current owner Darren Lewis. Mr Smith is a founding member of the Casualties of Telstra. Mr Lewis said this week he had experienced several problems with the phone and fax service since taking over the Cape Bridgewater Holiday Camp last year.

‘Telstra admits there is a fault and they are trying hard to solve it,’ he said.

But in January 2003, Darren Lewis was obliged to write to the TIO John Pinnock:

As well as speaking to David Hawker’s representative this morning, I also had a disturbing discussion with Tony Watson, the Telstra fault technician assigned to my case. Mr Watson informed me (in a roundabout way) that he is reluctant to supply me with any more information in relation to our phone faults because he knows I am in contact with Alan Smith, the previous owner of the business.

Was Telstra afraid I might attempt to reopen my arbitration? Or was Mr Watson still holding a grudge against me because of something that was supposed to have been addressed in my arbitration nine years before? Either way, it is outrageous that Darren Lewis had to suffer such treatment — and that such treatment is basically endorsed by the government, which refuses to confront Telstra.

Back to the politicians

In 2002 there was another attempt to initiate a government investigation into the travesties around the COT arbitration cases, this time by Senator Len Harris of Queensland, who wanted to see justice for the sixteen COT cases who missed out following the Senate Inquiry. The Senator was advised the government would look into those cases he had raised, but no investigation ever took place. The same issues were raised again, three years later, by the newly elected National Party Senator, Barnaby Joyce, who had just toppled Senator Harris for the same Senate ticket. Both Senators, representing two different parties, felt strongly about the denial of natural justice in the COT cases and were determined to redress it.

In July 2005 Senator Joyce agreed to add his vote to ensure the sale of Telstra went through the Senate, but only on the condition that the unresolved arbitration issues of the COT cases were properly and officially dealt with. But, once he had cast that crucial vote, the Minister for Communication Helen Coonan did a back-flip on her word and the COTs were shafted yet again. Senator Joyce was livid, and for a year demanded the justice he had paid for, but in vain.

In March 2006 Minister Coonan did, however, agree to a government process in which public servants would conduct a commercial assessment. Only two (out of what were then fourteen) COT cases agreed to this process, and I was one of them. The other twelve had no illusions that their claims would be truly independently assessed.

To support my claim that my arbitration had NOT rectified my phone and faxing problems the Hon. David Hawker, then Speaker in the House of Representatives, submitted a statutory declaration by Darren Lewis, the new owner of the business:

After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed whoever had installed the wiring had done an unprofessional job. Internal Telstra documentation provided to me by Alan Smith confirmed Telstra themselves had done the wiring. Jenny and I noticed that although our incoming call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems.

Telstra informed us we had what is commonly known in technical words as a line in lock-up rendering our business phone useless until the fault is fixed. It was then that the local technician informed me that as strange as it might seem he believed that because our business was on optical fibre and so close to the Beach Kiosk (junction box) this could very well be part of the problem ... It was on this note that the technician informed me that although it was a backward step he was going to investigate the possibility of moving the business off the optical fibre and back onto the old copper wiring.

Despite such strong confirmation of my case, Senator Coonan wrote to me on 17 May 2007 regarding her representation to Telstra on my behalf:

Telstra is not prepared to undertake an alternative means of pursing this matter. I also appreciate the depth of feeling regarding the matter and suggests you consider whether any court proceedings may be your ultimate option.

I can only wonder at the power Telstra wields: it seems impregnable.

The sad fate of Darren Lewis

On 28 January 2003, a letter from TIO officer Gillian McKenzie to Telstra states:

“Mr & Mrs Lewis claim in their correspondence attached:

That they purchased the Cape Bridgewater Coastal Camp in December 2001, but since that time have experienced a number of issues in relation to their telephone service, many of which remain unresolved.

That a Telstra technician ‘Mr Tony Watson’ is currently assigned to his case, but appears unwilling to discuss the issues with Mr Lewis due to his contact with the previous camp owner, Mr Alan Smith.” (See Home-Page File No/76 and D-Lewis File 1-I)

Was there a more sinister motive involved in Telstra’s technician refusing to help Darren Lewis with the ongoing phone/fax problems that, nine years before, Telstra and the arbitrator assigned to my case failed to investigate transparently? Why was this Telstra technician still holding a grudge against me in 2002/3 because of something my 1994/95 arbitration should have addressed – i.e., the ongoing phone and facsimile problems that this same Telstra technician was now refusing to help Mr Lewis with, nine years later?

Darren Lewis was so angry with this Telstra employee that he took a number of photos of the actual wiring that ran from Telstra’s pit to his residence and his office (the same office that was mine from 1988).

As part of his plans to renovate the house, Mr Lewis had begun to prepare for a heating system to be installed under the house but, in the process, as he sunk his shovel into a water-soaked area, he accidentally cut into a Telstra cable that was only buried half a shovel deep. Water from an overflow downpipe from the main accommodation block had been running off and collecting over the Telstra cabling that had obviously not been buried deep enough (see the following photos taken by Mr Lewis at the time).

According to the AUSTEL’s records, the Telstra cable was installed in 1991 and, as this photo below shows, it was this faulty installation that led to the cable itself becoming waterlogged. Yet, on 6 April 1995, during my arbitration, when I begged Telstra and the arbitration’s so-called independent technical consultants to run a series of tests to all three of my service lines and inspect the Telstra pit outside the office to ensure that the Customer Access Network (CAN) was up to the proper network standard, my request was refused outright.

Mr Lewis took 22 photos that day, showing just how poor Telstra’s workmanship was when the cable was installed. The open pipe was full of water and water had run down the pipe to the u-bend. After Telstra installed new cabling, Darren advised the TIO, the number of incoming calls increased by more than 100 per cent: this is confirmed by CCAS data.

So what was my arbitration about? Shouldn’t the TIO and the technical consultants he appointed have investigated why I was still registering ongoing telephone problems? It certainly appears the real reason for the way the arbitration was run was to ensure that the Telstra Corporation could continue to conceal all the problems created by their ailing copper wire network, and really, all the arbitrator had to do was grant us an award to compensate us and cover up the rest, exactly as it has been ever since, for the past 20-plus years.

On 1 September 2004, Darren Lewis’ (who purchased my holiday camp in December 2001) wrote to our local MP, David Hawker, stating:

“I must also reiterate my thanks for the pressure you put on Telstra in late 2002 – I believed it was this that finally forced them to re-wire the kiosk at the camp and disconnect the faulty telephone alarm bell which local Telstra employees believed could have been causing some of the problems with incoming calls. Although the incoming calls increased dramatically one the re-wiring had been done, the trauma of the first year we were here has not gone away.”

Telstra waited until 10 months after I had sold the business before they transparently investigated the ongoing telephone and faxing problems I raised during my actual arbitration and for six years after it was declared over. If this isn’t discrimination of the worst possible kind, then what is? Did Telstra make a deal with the arbitrator to ensure that he would only investigate old, historic, anecdotal phone and faxing faults and totally ignore any ongoing problems in the rural network that, if they were proved to exist, would open the floodgates and allow other rural customers to sue Telstra?

When I showed the Hon David Hawker MP that the arbitrator only addressed old issues and none of the issues that continued to affect other Cape Bridgewater customers and me, he arranged a meeting in Parliament House, in Canberra, with Senator Alston, the then-Minister for Communications. The senator’s staff agreed to investigate a 60-plus page report (and attachments) that I provided to them. This report was eventually returned to me – without the attachments – but with a covering letter from a Paul Fletcher, refusing to address the report at all. This bureaucrat is now the Hon Senator Paul Fletcher who, from 2014 to 2016, has been assisting the present Prime Minister of Australia with the problems associated with Telstra’s ailing copper wire network that has been the root cause of the slow rollout of the NBN.

On 26 May 2019, Paul Fletcher became Australia’s Minister for Communications and the Arts (see  Media Release: Fletcher 'deeply honoured' to be appointed Minister for Communications, Cybersafety and the Arts).

As the new Minister for Communications,   I can only hope The Hon Paul Fletcher will now look at the evidence I provided Senator Alston in September 1995, and the more updated version of June 1996 and the more recent information now exposed on absentjustice.com, especially as numerous senators found our COT arbitrations were not conducted lawfully.

If the TIO had allowed his appointed arbitration technical consultants to properly investigate the COT cases, as they should have, then that corroded copper wire network would have been uncovered and investigated in 1994, instead of in 2012, and the current Telstra shareholders would not be left picking up the tab. No wonder the Hon David Hawker was livid when he discovered that Darren Lewis was still having phone problems in November 2006, as our Main Evidence File No 3 shows.

I provided two photos Darren Lewis took to Senator Len Harris, showing him how deep the cabling was running: 50 meters along a trench less than half a shovel deep.

After seeing these photos, I employed a professional video production company to produce a video showing how the actual wall sockets looked when the casing was removed. I still have copies of that video but, in April 2016, when we tried to transfer it to a CD, we discovered that the quality was not good enough for use on the internet.

Back in December 2002, when the video was produced by Noel Waugh (Video Production of Portland), we sent a copy to the office of the then-Minister for Communications, Senator Richard Alston. Like most bureaucrats working in government departments, those who worked in Senator Alston’s office did not understand the relevance of the video in relation to my claims of ongoing problems and nor did they understand it showed how incompetent some Telstra employees were, particularly in rural Australia. It was, after all, Telstra’s incompetence, coupled with the fact that no one in Telstra really cared about the suffering of telephone customers, especially those with telephone-dependent businesses, that ruined the lives of so many small business operators.

If the arbitrator had conducted my arbitration according to the ambit of the Commercial Arbitration Act 1984 and investigated ALL of my ongoing telephone and faxing claim documents, then Darren and Jenny Lewis (as new owners of my business) would not have suffered. I was forced to sell my business because the TIO and Telstra did not transparently investigate my claims. Both the TIO and Telstra failed to divulge their investigation conducted on 14 January 1998, after my arbitration, showing it was apparent the phone problems would indeed continue.

If the TIO did carry out an in-house investigation into my claims some COT faxes were being illegally intercepted, but came to the conclusion that those faxes did not arrive because they were lost as a direct result of faults in the network – the very network under investigation by the arbitrator – it was deplorable for the TIO to not respond to my interception claims. Deplorable because, either way, regardless of whether missing documents were intercepted and not forwarded on or were lost because of faults in the network, ultimately certain claim documents of relevance to the COT claims were NOT assessed by the arbitration process as the Federal Labor Government when they endorsed our arbitrations.

On 4 September 2006, Darren Lewis provided the Hon Senator Helen Coonan, Minister for Communications, Information Technology and the Arts, with a two-page statutory declaration noting:

“Letters from us to our local Federal Member of Parliament, the Hon David Hawker, Speaker in the House of Representatives, led to Telstra visiting our business to investigate these continuing problems.

“After Telstra rewired the business including disconnecting a Telstra installed faulty phone alarm bell, we were informed Telstra had found other problems and believed who ever had installed the wiring had done an unprofessional job.

“Internal Telstra documentation provided to me by Allan Smith confirmed Telstra themselves had done the wiring.

“Jenny and I noticed that although our incoming-call rate had more than doubled once this wiring had taken place Telstra was still unable to provide a satisfactory reason as to why we were still having problems. …

“The technicians then in a hookup consultation with outside office guru’s  did a fault graph reading on our 55 267267 line with the outcome that their office technical staff stated words to the affect  the reading was impossible (couldn’t be correct). It was then that the local technician became quite annoyed when the technical guru insinuated that the equipment the local tech was using must be faulty. The local tech then informed the technical guru that there was nothing wrong with the equipment at all.” (See Main Evidence File No 13)

Most, if not all, of the COT cases suffered from sleep disorders and stress for years as a result of their battles, with Telstra’s senior management who continued to deny there was ever a phone problem affecting their businesses. It was these type of denials by Telstra employees like Tony Watson after the COT Cases had spent hundreds of thousands of dollars in arbitration fees after the government had promised would be fixed as part of the government endorsed processes that caused so much damage.

I provided Ms Howard with a letter dated 21 March 1999 and addressed to the Casualties of Telstra, C/- The Small Business Show, Channel Nine. This letter suggests others who ran afoul of Telstra had suicided:

“I watched your show on Sunday morning carrying the piece on Telstra. I was interested to hear of Telstra’s lies under oath, destruction of evidence, etc, etc.

“I started a lawsuit 2½ years ago against Telstra for breach of contract during their cable TV rollout. They have placed every obstacle in our way and dragged the case out to try to bleed us dry. They sent dozens of contracting companies such as mine to the wall by manipulating markets and breaching contracts. Only 3 companies have had the resources to fight them. Unfortunately two company owners have allegedly committed suicide due to the loss of their homes and families as a consequence of Telstra’s actions, although this would be difficult to prove.

“As a direct consequence I have lost my home, separated from my wife, lost hundreds of thousands of dollars and a twenty year old business and fought a very dirty legal battle. My other partners have had to sell or re mortgage homes and one has retired without any of the security he should have had from ownng  a business for over twenty years.” (See Home Evidence File No/7)

I also provided another letter received by me, dated 8 November 2002, from a man in South Australia, stating:

“I am writing to you following viewing the Channel 9 Sunday Program on 3/11/02. After viewing the Sunday program, I realised the similarities you  business and others had with Telstra some ten years ago with the similarities our building business had, when we lived at Bridgewater. …

“During this period of time I was on a call talking to a councilor . She believed that the conversation we were having was being bugged, or listened into, and we immediately ceased the call. …

“Our phone problem had such a negative effect on our building business over a period of time that our work dried up and or  business shut down.” (See Home Evidence File No/15)

I believe Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, enabling the person on duty to listen in on those conversations. After reading the letters I supplied, letters Ms Howard drew up a Risk Management Plan for Darren to use (AS-CAV Exhibits 589 to 647 - See Exhibit AS 629), including a warning that, if Darren felt suicidal again, he should not only share those thoughts with his wife but also with me as well as with Portland Health.

And now, here was Telstra in 2002/2003 – nine years after my arbitration process – still having not fixed my original telephone problems and making sure that the Lewis’ ongoing telephone problems were also not transparently investigated because to do so would prove just how delusive and undemocratic my arbitration process was. The Lewises’ lives, like mine and my partner’s, were insignificant as long as Telstra’s network deception remained protected … at all costs. (see also Chapter 4 The New Owners Tell Their Story and  Chapter 5 Immoral - hypocritical conduct).

A number of politicians from both sides of the house, I am sure, are aware Absent Justice My Story is not a site that attacks the government with vexatious accusations of malice. The website was set up in January 2015, 20 years after I tried every conceivable way to prove my claims: that NONE of my ongoing billing faults, raised with the government in 1993 and 1994 by my then Federal Member of Parliament the Hon David Hawker MP and Shadow Minister for Communications the Hon Richard Alston, were addressed during my government-endorsed arbitration of 1994. I have always maintained, as have many government ministers from both sides of the House, that the first four COT case arbitrations were facilitated in order to fix the COT cases’ telephone problems, as well as to award damages if the claimant proved his claims. The arbitrator Dr Hughes found Telstra was indeed deficient in its supply of a phone service for the whole period of my claim.

However, TIO records show it was warned by AUSTEL, on 3 October 1995 (five months after Dr Hughes brought down his award), that NONE of my ongoing billing telephone faults raised in my arbitration were investigated or addressed during my arbitration. The TIO (the administrator of my arbitration) did nothing to transparently investigate why the arbitration process did not address these still-ongoing billing problems, even after being further advised, on 15 November 1995, by the TIO arbitration project manager John Rundell that NONE of my arbitration billing faults were addressed by the arbitrator.

FOI folio I00271 and I00265

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration; I can provide, on request, government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

“The TIO have now raised a level 1 complaint on behalf of Mr & Mrs Lewis. The TIO have specifically mentioned in their correspondence that the TIO have previously investigated a number of complaints raised by the previous account holder for this service in which similar issues were raised.”

The blanking out of my name does not hide the fact that I was the previous account holder of that telephone service.

The second Telstra FOI folio, I00265 (File N0 3-B), dated 24 October 2002, states:

“David Hawker MP has written to Senator Alston on 10 October and included a 3 October letter from Darren and Jenny Lewis. This 3 October letter has been cc’d to the TIO but doesn’t seem to have made its way into Telstra yet. Will follow in Cicero and respond accordingly. Hopefully, the TIO will become involved and that will take the Minister and Member out of the equation.”

I highlight FOI folio I00265 because it is a good example of how valid claims can so easily be hidden from any Minister in government if the TIO becomes involved. It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

Numerous other documents on my website clearly show other government Ministers apart from The Hon Senator Richard Alston and The Hon David Hawker MP have been misleading and deceived over the validity of my claims that my arbitration did not address my ongoing telephone and faxing problems that in the end, left me little option but to sell my holiday camp.

I believe that Darren first became concerned about the possibility that his phone conversations also may have been illegally listened to when he discovered my accreditation file in the camp office, where I had inadvertently left it when handing the Camp over to Darren. This file included Australian Federal Police/Telstra intercept documents, including one dated 14 April 1994 from Telstra to the AFP, notifying them that Telstra had installed equipment in the Portland exchange so that a bell would ring whenever I received an incoming telephone call, so that the person on duty could then listen in on those conversations. I provided this Risk Management Plan (AS-CAV Exhibits 589 to 647 - See exhibit AS 629) to the Australian Government as well as the Administrative Appeals Tribunal during my 2008 Freedom of Information hearing – No V2008/1836.

About six weeks after Ms Howard’s visit, Darren came to tell me he was considering selling up, but was worried about what to tell prospective buyers about the telephone problems. He accepted that when I had sold the business to him I had firmly believed that Telstra would fix the problems once I was no longer involved, and he agreed that he had also expected this to happen. But he felt now that he could not sell the business without divulging the continuing nature of those problems.

The Portland Coastal Real Estate Agency recorded two offers for the Camp, of $1,300,000 in April 2007 and $1,200,000 in June, before Darren withdrew the property from the market. Technical guru Brian Hodge, who had previously worked for Telstra for 29 years, inspected the place and provided Darren with a report in July 2007, which noted that the faults were actually getting worse.

Towards the end of 2008 Darren was before the Federal Court because of overdue taxes and was filing paperwork for bankruptcy.

In 2008, Darren Lewis wrote to the Federal Magistrates Court stating:

I was advised by Ms McCormick that the Federal Magistrates Court had only received on 5th December 2008 an affidavit prepared by Alan Smith dated 2 December 2008. PLEASE NOTE: I originally enclosed with Alan Smith’s affidavit in the (envelope) overnight mail the following documents:

Two 29 page transparent s/comb bound report titled SVT & BCI – Federal Magistrates Court File No (P) MLG1229/2008 prepared by Alan Smith in support of my claims that I had inherited the ongoing telephone problems and faults when I purchased the Cape Bridgewater Holiday Camp

Two s/comb transparent bound documents titled Exhibits 1 to 34

Two s/comb transparent bound documents titled Exhibits 35 to 71 (the attached 71 Exhibits was enclosed in support of Alan Smith’s 29 page report);

Three CD Disks which incorporated all of the submitted material.

“On learning from Ms McCormick that the information discussed above in points 1 to 4 had not been received by the Federal Magistrates Court I again had a stress attack seizure, a problem I have been suffering with for quite some time due to the predicament I now find myself in and the disbelief that once again my mail has been intercepted. I have attached herewith dated 3rd December 2008, a copy of the Australia Post overnight mail receipt docket numbers SV0750627 and SV0750626 confirming the total cost to send the above aforementioned information was $21.80. I am sure Australia Post would confirm that a large amount of documents would have been enclosed in these two envelopes when they left Portland. (See My Story Evidence File 12-A to 12-B)

Australia Post will not charge any postage fee for an overnight parcel unless they stamp and retain it. Since neither of these parcels arrived at their proper destination with all of the information originally enclosed, those documents must, therefore, have been ‘lost’ between the Portland Post Office and the Magistrates Court.

As I have reported throughout this webpage numerous Telstra COT related arbitration documents (like those lost on route to the Federal Magistrates Court in December 2008) were also lost during 1994/95 on route to the arbitrator hearing my case.

As Darren’s letter shows, I helped him prepare his bankruptcy appeal against the Australian Taxation Office (for back taxes) using my own evidence that the Telstra Corporation, knowingly submitted two false and fundamentally flawed Cape Bridgewater reports to the arbitrator during my arbitration, to deliberately mislead the arbitrator into believing that there were no more ongoing phone problems affecting my business.

I use the two following Telstra FOI documents, folio I00271 and I00265 (see Our Saga File N0 3-A to 3-C) as a testament that the TIO knew my ongoing billing faults continued for years after my arbitration. Government records showing the TIO misled and deceived government ministers, over many years, concerning the validity of my claim. Telstra FOI document folio I00271 (File N0 3-A), dated 24 October 2002 has been used here to support that the TIO was fully aware of the ongoing telephone and faxing problems being experienced by Darren and Jenny Lewis after they purchased my business. This document folio I00271 states:

“The TIO have now raised a level 1 complaint on behalf of Mr & Mrs Lewis. The TIO has specifically mentioned in their correspondence that the TIO has previously investigated a number of complaints raised by the previous account holder for this service in which similar issues were raised.”

The blanking out of my name does not hide the fact that I was the previous account holder of that telephone service.

The second Telstra FOI folio, I00265 (File N0 3-B), dated 24 October 2002, states:

“David Hawker MP has written to Senator Alston on 10 October and included a 3 October letter from Darren and Jenny Lewis. This 3 October letter has been cc'd to the TIO but does not seem to have made its way into Telstra yet. I will follow in Cicero and respond accordingly. Hopefully, the TIO will become involved, and that will take the Minister and Member out of the equation.”

I have highlighted FOI folio I00265 because it is a good example of how valid claims against Telstra was so easily be hidden from the relevant Minister in government, i.e., if the TIO became involved.

It is clear from the above statement that these ongoing faults at Darren and Jenny Lewis.’ business would remain hidden if the then Minister (which was then-Senator Richard Alston) and the Member (which was The Hon David Hawker were kept “out of the equation.”

These were the same ongoing telephone faults that the arbitrator failed to investigate during my arbitration.

In August 2009 Darren and Jenny Lewis walked off the property as the result of a bankruptcy court order. The camp was sold for less than $600,000, even though the local real estate broker could have sold it two years previous for $1.2 million dollars (refer Cape Bridgewater Eco-Tourism Venture -)

Chapter 12

Summing up the years

There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.

Over the same years, the COT members have sent updated information supporting our various claims to Warrick Smith, Richard Alston, Amanda Vanstone and other appropriate ministers, officials, politicians and senators. I have provided documented proof, again and again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.

I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence, I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’ (See page 99 COMMONWEALTH OF AUSTRALIA - Parliament of Australia.

In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination.The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:

Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date …

No one has requested them.

I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?

But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:

I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes.

The last I heard from the IAMA Ethics and Professional Affairs Committee was in 2014. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’

One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us.

We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.

When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?

If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging, I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all of these issues my claims were effectively silenced — by being ignored.

Conflict of Interest

No author should write only part of a story based on fact while leaving out a relevant part of the story because it might be seen as detrimental to another person in the story. A full factual account of what happened during the COT arbitrations is necessary: both the good and the bad.

So, I must raise a conflict of interest that clearly affected the whole outcome of the first four arbitrations. I felt it was best to leave this issue to last.

What has been decidedly the hardest decision for me to make since I began telling the COT storey is exposing the conflict-of-interest issue between Graham Schorer (Golden Messenger) and Dr Gordon Hughes. For Telstra (the defendants in those four arbitrations) to have allowed this the conflict-of-interest issue with existing before the four complainants signed the arbitration agreement in April 1994 suggests that Telstra saw an advantage to their defence by allowing it. I only uncovered this conflict-of-interest issue in 2008, after Graham Schorer asked me in August 2006 to write several reports concerning the COT story.

After I had exposed to Graham/Golden how his conflict-of-interest with the arbitrator had benefitted him and not the other COT Cases and that this conduct by Dr Hughes was more than questionable and had the senate knew about this conflict of interest issue at the time of their 1997 to 1999 (Freedom of Information) investigations, this would have been enough for the senate to instigate a full-blown Senate hearing, and he wanted to the right the wrongs by submitting to the senate the reports I was writing. This providing my reports to those senators he had met in Canberra would help him to live with what he had done. This was to be his redemption. He felt ashamed for having benefitted from his previous association with Dr Hughes, and the other COT Cases had not.

Some years into my research regarding Graham’s involvement in the COT arbitration’s I uncovered Dr Gordon Hughes had been assisting Graham/Golden in his Golden Messenger business enterprise as well as acting as his Federal court lawyer during the early part of Graham’s previous 1990 to 1993 court action against Telstra. These were the very same technical issues he was appointed by the TIO in 1994 to assess as arbitrator in all four COT claims against Telstra.

When I asked Graham to please explain why he had concealed this conflict-of-interest from me before arbitration as well as before commissioning me to write the COT story; he wrote the following document exhibit GS 565 file GS-CAV 459 to 489 as a compromise if I would continue with the project at hand.

For the second time within days, Graham again confided in me his sense of guilt for not exposing this conflict of interest during the period the Senator was investigating his Freedom of Information FOI matters which awarded him 3,600 million dollars. He felt guilty as the COT spokesperson for not having done more for the remaining (sixteen COT Cases who also had the same FOI problems with Telstra during their various litigation processes). I reiterate his paying for me to expose this whole dreadful saga was his way of righting his wrongs for not having done more as the COT spokesperson.

It is as important to look at this conflict-of-interest issue from the perspective of the other COT claimants as it is to look at it from Graham’s perspective because, as Graham’s earlier legal advisor in both his business ventures and his Federal Court Telstra matters. Because if Dr Hughes, as Graham alleges, he did know about the concealment of important documents Graham/Golden litigation against Telstra in the Federal court from 1990 to 1992, then we three COT Cases Ann Garms, Maureen Gillan and I were entitled to have been briefed on this matter. The fact that Telstra and the Establishment got away with this during a federal court action is one thing, but for Dr Hughes and/or members of the legal firm to which Dr Hughes was a senior partner appear to have also been party to this concealment brings a massive cloud over the COT four arbitration just three years later, when Telstra concealed similar documents from all of the four COT cases during their arbitration, in which Dr Hughes was the arbitrator.

Possibly even worse for the other two COT Cases and I is that Dr Hughes allowed Graham/Golden an extra three or more years longer to access their documents from Telstra, over and above what he allowed us, three COT claimants, even though the official arbitration rules did not permit this. Dr Hughes only allowed me one extra week to access my documents from Telstra shows how this conflict of interest tainted the whole arbitration process.

Before the government communications regulator, AUSTEL (now AMA) endorsed Dr Gordon Hughes as the independent arbitrator they had a duty of care to advise the COT Cases in writing that Dr Hughes was not an experienced arbitrator and had not been graded by the Institute of Arbitrators Australia to perform such complex arbitrations as the COT four processes. AUSTEL did not. Could you inform us of this fact?

Dr Hughes himself also failed his duty of care as a pending arbitrator to COT Cases Ann Garms, Maureen Gillan, and me in writing as per the rules of the Victorian Arbitration Act that he had a conflict of interest with the fourth claimant Graham/Golden. And to add further salt to the COT Cases future wounds was that Graham Schorer, in his capacity as COT spokesperson failed to disclose to us three other COT Cases (refer exhibit GS 565 file GS-CAV 459 to 489) that we should not send arbitration related faxes to Dr Hughes’ Melbourne office after the closing of business each day; otherwise, they may not arrive at their intended destination.

Front Page Part One File No/1 shows the arbitrator’s secretary advised Tony Watson (of Telstra’s arbitration defence unit) that on 23 May 1994, six of my claim documents did not reach the arbitrator's fax machine. Yet, I was charged on my Telstra account for those six faxes. Why was this matter not investigated? NO one from the arbitrator’s office or the TIO’s office allowed me to amend my claim so that the not received claim documents could be valued as part of my arbitration proces



Telstra-Corruption-Freehill-Hollingdale & Page
Corrupt practices persisted throughout the COT arbitrations, flourishing in secrecy and obscurity. These insidious actions have managed to evade necessary scrutiny. Notably, the phone issues persisted for years following the conclusion of my arbitration, established to rectify these faults.

Confronting Despair
The independent arbitration consultants demonstrated a concerning lack of impartiality. Instead of providing clear and objective insights, their guidance to the arbitrator was often marked by evasive language, misleading statements, and, at times, outright falsehoods.

Flash Backs – China-Vietnam
In 1967, Australia participated in the Vietnam War. I was on a ship transporting wheat to China, where I learned China was redeploying some of it to North Vietnam. Chapter 7, "Vietnam—Vietcong," discusses the link between China and my phone issues.

A Twenty-Year Marriage Lost
As bookings declined, my marriage came to an end. My ex-wife, seeking her fair share of our venture, left me with no choice but to take responsibility for leaving the Navy without adequately assessing the reliability of the phone service in my pursuit of starting a business.

Salvaging What I Could
Mobile coverage was nonexistent, and business transactions were not conducted online. Cape Bridgewater had only eight lines to service 66 families—132 adults. If four lines were used simultaneously, the remaining 128 adults would have only four lines to serve their needs.

Lies Deceit And Treachery
I was unaware of Telstra's unethical and corrupt business practices. It has now become clear that various unethical organisational activities were conducted secretly. Middle management was embezzling millions of dollars from Telstra.

An Unlocked Briefcase
On June 3, 1993, Telstra representatives visited my business and, in an oversight, left behind an unlocked briefcase. Upon opening it, I discovered evidence of corrupt practices concealed from the government, playing a significant role in the decline of Telstra's telecommunications network.
A Government-backed Arbitration
An arbitration process was established to hide the underlying issues rather than to resolve them. The arbitrator, the administrator, and the arbitration consultants conducted the process using a modified confidentiality agreement. In the end, the process resembled a kangaroo court.

Not Fit For Purpose
AUSTEL investigated the contents of the Telstra briefcases. Initially, there was disbelief regarding the findings, but this eventually led to a broader discussion that changed the telecommunications landscape. I received no acknowledgement from AUSTEL for not making my findings public.
&am
A Non-Graded Arbitrator
Who granted the financial and technical advisors linked to the arbitrator immunity from all liability regarding their roles in the arbitration process? This decision effectively shields the arbitration advisors from any potential lawsuits by the COT claimants concerning misconduct or negligence.<
The AFP Failed Their Objective
In September 1994, two officers from the AFP met with me to address Telstra's unauthorized interception of my telecommunications services. They revealed that government documents confirmed I had been subjected to these violations. Despite this evidence, the AFP did not make a finding.&am
The Promised Documents Never Arrived
In a February 1994 transcript of a pre-arbitration meeting, the arbitrator involved in my arbitration stated that he "would not determination on incomplete information.". The arbitrator did make a finding on incomplete information.

Transcripts from the Administrative Appeals Tribunal (AAT) dated 8 October 2008 (No V2008/1836) reveal significant testimony provided by Graham Schorer, the spokesperson for COT cases. In an official capacity under oath, Mr. Schorer conveyed to two government attorneys and a senior member of the AAT panel that he and I were actively seeking access to a series of freedom of information documents that Telstra had withheld during the critical arbitration discovery process. Our primary objective was to compile a comprehensive and factual narrative that would illuminate and potentially open doors for other similar cases—fewer than sixteen—that could prompt the Senate to advocate for a thorough government investigation into the validity of our claims.

What Mr. Schorer failed to disclose to the attorneys or the presiding judge, Mr. GD Friedman, was a crucial detail that had a bearing on our case: unbeknownst to me, the government had concealed AUSTEL Adverse Findings from both itself and the arbitrator in March 1994. Alarmingly, these findings were provided to Telstra a mere six weeks before I signed my arbitration agreement. This transfer of information was strategically timed to assist Telstra in mounting a defence against my claims regarding the persistent problems I was experiencing with telephone and fax services, continuing even on the day the information was bestowed upon them.

The government appeared to operate under the belief that preventing me from substantiating my claims was imperative. It was not until November 2007—twelve years after the government initially supplied these AUSTEL Adverse Findings to Telstra—that I received access to this critical document. By this point, the utility of the findings had diminished significantly, as they were now five years past the six-year statute of limitations for filing an appeal against my award.

A thorough examination of this report may lead an impartial observer to conclude that the government has patently breached its obligations towards me as an Australian citizen. This breach appears to stem from a discriminatory practice favouring Telstra, a corporation wholly owned by the Australian government and representing the collective interests of the Australian people, during that significant period in March 1994, Refer to AUSTEL’s Adverse Findings

Points 2 to 212, in AUSTEL’s Adverse Findings, dated March 1994 confirm the government public servants who investigated my ongoing telephone problems found my claims against Telstra validated. One does not have to be a genius to understand that had the arbitrator been provided AUSTEL’s Adverse Findings, his award on my financial business losses would have been substantially higher than he awarded on a claim that did not have a comprehensive log over the six-year period which AUSTEL used in which to derive at their findings.

On 3 October 2008, senior AAT member Mr G D Friedman considered this AAT hearing and, on 3 October 2008, stated to me in open court in full view of two government ACMA lawyers.

“Let me just say, I don’t consider you, personally, to be frivolous or vexatious – far from it.

“I suppose all that remains for me to say, Mr Smith, is that you obviously are very tenacious and persistent in pursuing the – not this matter before me, but the whole – the whole question of what you see as a grave injustice, and I can only applaud people who have persistence and the determination to see things through when they believe it’s important enough.”